P. v. Torres CA5

Filed 4/9/13 P. v. Torres 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064493 Plaintiff and Respondent, (Super. Ct. No. MF009853A) v.

ANTONIO TORRES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.

Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P.J., Cornell, J., and Peña, J.

FACTS AND PROCEEDINGS Amended Information Appellant, Antonio Torres, was charged in an amended information filed on February 7, 2012, with two counts of attempted carjacking (Pen. Code, §§ 664 & 215, subd. (a), counts 1 & 2),1 two counts of assault with a firearm (§ 245, subd. (a)(2), counts 3 & 4), possession of a firearm by a convicted felon (§ 12021, subd. (a)(1), count 5), and possession of ammunition by a convicted felon (§ 12316, subd. (b)(1), count 6). Counts 1 and 2 alleged that appellant personally used and discharged a firearm in the commission of those offenses (§ 12022.53, subds. (b) & (c)). The amended information further alleged that appellant had two prior prison term enhancements (§ 667.5, subd. (b)) and a prior serious felony conviction under the three strikes law (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)). Facts and Suppression Motion At 9:30 p.m. on October 30, 2011, Sara Strack was driving down Dixie Street in Rosamond with her husband. While she was slowing down to turn at an intersection, appellant came up to Strack’s husband and pointed a gun at his head. Strack stopped the car, pulled out a knife, and pointed it at appellant. Appellant pointed the gun at Strack, said he was not playing, and shot a round in the air. Strack described the weapon as a little black gun. Strack’s husband had a struggle with the man and jumped back in the car. According to Strack, her husband expressed: “[h]e’s all run him over, run him over.” Strack tried to turn the car and appellant fired another shot that struck a passenger’s door of the car.