People v. Smith CA5

Filed 6/20/22 P. v. Smith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F080233 Plaintiff and Respondent, (Super. Ct. No. F17903429) v.

BRIAN ANDREW SMITH, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell, III, Judge. Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Brian Andrew Smith was convicted by jury of murder after he shot and killed a man. On appeal, he claims instructional errors undermine the conviction. We affirm.

BACKGROUND Charges The Fresno County District Attorney charged Smith with one crime: murder. (Pen. Code,1 § 187.) The charge included allegations Smith used a firearm in committing murder. (§§ 12022.53, subd. (d), 12022.5, subd. (a).) Evidence A woman testified Smith came to her residence while “intoxicated.” She later heard an argument outside her home followed by a gunshot. When she looked outside, she saw Smith and then his vehicle “speeding away ….” Several hours later, a man’s body was found in a vineyard. The coroner determined a single gunshot wound to the head killed the man. The wound suggested the gun was fired while in contact with the skin. The manner of death was homicide; suicide was “nearly impossible.” An investigation led to Smith. He was detained and interviewed. He initially denied any involvement in the victim’s death. He revised his statement and explained he actually was with the victim but the victim committed suicide. At trial, Smith testified he accidentally killed the victim. He explained he went to his friend’s house and was “smoking … weed” and “drinking beer” when the victim arrived. While Smith, the victim, and Smith’s friend were all outside, the friend started playing with Smith’s gun. Later, when Smith wanted to leave, he tried to take the gun from his friend but the friend “just kept playing around with it.” Smith eventually grabbed the gun but it fired, killing the nearby victim. He denied alcohol caused the gun to discharge.