People v. Painia

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA468072 David V. Herriford, Judge. Affirmed.

Lori A. Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

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COLLINS, J.

Dissatisfied with repairs performed on his vehicle, appellant Manuel Painia entered a repair shop and demanded a refund from the shop owner, pointed a gun at him, threatened him, then moved outside the shop and fired the gun into the air. A jury convicted appellant on five counts arising from the incident, including assault with a firearm and discharge of a firearm. On appeal, appellant challenges the court's sentencing on the discharge count, arguing that the court erred in finding a separate and distinct act for purposes of Penal Code section 654.^[1]He also contends the trial court failed to recognize its discretion under the three strikes law to impose a concurrent sentence on that count. Lastly, he argues that the court abused its discretion in refusing to strike his prior strike convictions. We affirm.

SPROCEDURAL HISTORY

An information filed in 2018 charged appellant with assault with a semi-automatic firearm (§ 245, subd. (b); count one), criminal threats (§ 422, subd. (a); count two), discharge of a firearm with gross negligence (§ 246.3, subd. (a); count three), possession of a firearm by a felon with four priors (§ 29800, subd. (a)(1); count four), and unlawful possession of ammunition (§ 30305, subd. (a)(1); count five^[2]). The information further alleged appellant personally used a firearm as to counts one and two (§ 12022.5), suffered two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667,

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subds. (b)-(j), 1170.12, subd. (b)), suffered two prior serious felony convictions (§ 667, subd. (a)(1); counts one through three), and served two prior prison terms (§ 667.5, subd. (b)).

Appellant's first trial ended in a mistrial after the court found the jury was deadlocked. On retrial, the jury found appellant guilty as charged on all five counts and further found true the allegation that appellant personally used a firearm.

Following a court trial on appellant's prior convictions, the court found true the allegations regarding appellant's two prior strike convictions. The court found the People failed to prove the allegations regarding prior prison convictions under section 667.5, subdivision (b), and therefore struck them. The court denied appellant's Romero^[3] motion to strike his prior strikes.

The court sentenced appellant to a total of 56 years to life in prison as follows: on count one, the court imposed the upper term of nine years, tripled pursuant to section 667, subdivision (e)(2)(a), plus four years for the firearm enhancement under section 12022.5 to run consecutively, for a total of 31 years. On count two, the court imposed a term of 25 years to life pursuant to the three strikes law, plus four years for the firearm enhancement. The court stayed the sentence on count two pursuant to section 654. On count three, the court imposed a consecutive term of 25 years to life pursuant to the three strikes law. On each of counts four and five, the court imposed three-year terms, doubled pursuant to section 1170.12, and stayed pursuant to section 654. The court struck the five-year prior conviction enhancements under section 667, subdivision (a) as to counts one through three. Appellant timely appealed.

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FACTUAL BACKGROUND

I. Prosecution Evidence

Andre Francois owned an auto repair shop called Islander Auto Repair, at the corner of West 46th Street and Western Avenue in Los Angeles. He also owned the restaurant next door. Francois testified that he had seen appellant two or three times prior to the incident and worked on appellant's car about two months earlier. The morning of May 11, 2018, appellant came into the shop. He was accompanied by Chris Thompson, whom Francois knew because Thompson grew up down the street from the shop. Francois testified that he first saw appellant that morning riding in his motorized wheelchair, coming through the alley behind the shop. Francois approached appellant at the front of the shop, and appellant said that Francois owed him over $800 and needed to pay him today. Appellant showed him a receipt from car repairs done at another shop, stood up from the wheelchair, and said, "I need my fucking money today, otherwise I'm going to fuck up the shop."

Francois smelled alcohol on appellant, so Francois told appellant to "come back another time with the right state of mind and we [sic] talk about this." Appellant grew angrier and said, "You [sic] going to fucking give me my money today or I'm going to blow the motherfucker up." Francois testified that he did not pay attention to these statements; instead, he walked back into the shop. Appellant continued to stand on the sidewalk, swearing. Francois told another mechanic, "Don't worry about it. He's drinking." Appellant and Thompson left and Francois went back to work.

Appellant returned about 10 to 15 minutes later. He was again accompanied by Thompson, who was now on a bicycle.

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Francois testified that he approached appellant and asked him what happened. Appellant pulled a black handgun out of his pocket, pointed it at Francois's head, and said, "motherfucker, I need my motherfucking money now. I'll blow your fucking head off." Francois recalled that the gun was a few inches from him at the time. Francois put his hands up and told appellant, "you don't have to do this." Then Francois heard Thompson say something to appellant, causing appellant to turn away. As soon as this happened, Francois ran out of the shop, toward Western Avenue.

When Francois got to the corner, he called 911. The prosecution played the call for the jury, placed at 9:08 a.m. on May 11, 2018. Francois told the 911 operator that a man in a wheelchair pointed a gun at his head. As he continued to give details of the incident, he told the operator that appellant was "shooting right now!" When the operator asked who the assailant was shooting at, Francois responded, "I don't know," and later that he was shooting "at the cars."

Francois testified that while he was on the phone with 911, he could see appellant on the sidewalk "pointing the gun at everything" and also pointing it back inside the shop. Francois crossed 46th street and lost sight of appellant as he hid. When he looked again, appellant was in front of the restaurant, moving toward Western in his wheelchair, still holding the gun. Then appellant raised his arm and fired the gun. As Francois described the shooting, appellant was not pointing up in the air, but was pointing across the street. The prosecution played surveillance video from the auto shop that showed the assailant firing into the air.

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Francois saw appellant fire one shot. Afterward, he saw Thompson take off running and appellant head toward the alley. Francois then flagged down the police. He testified that he believed people were walking on the street at the time of the incident, and the nearby market was also open.

Two mechanics working that morning at the auto repair shop also testified. Lavonne Phillips stated that he had seen appellant come into the shop several times before. That day, Phillips saw appellant come into the shop in his wheelchair, seeming angry. Appellant was going up and down the sidewalk in his "scooter wheelchair" yelling, "Andre, I want my $900." Phillips testified that appellant also threatened Francois. Appellant was accompanied by Thompson; at one point, appellant told Thompson, "Go get the gun." Phillips saw Thompson walk toward the alley, then return with a gun. Thompson passed the gun to appellant and appellant said, "We gonna blast these motherfuckers."

Phillips hid toward the back of the shop when he heard appellant say he was going to "blast" people; he also called 911. In the 911 call, which was played for the jury, Phillips reported that a man in a wheelchair pulled out a gun, and was "threatening a guy." Phillips also said that the man pointed the gun and "threatened the guys here . . . say he gon' shoot 'em." Phillips testified that from his hiding spot, he saw appellant and Thompson leave the shop, heading toward Western Avenue. Then Phillips heard a gunshot. He did not see who fired the gun, he just saw people scatter.

Dougal Toney, Francois's cousin, was also working at the shop that morning. After he opened the shop that morning, he saw appellant in the alley, holding a bottle of cognac. Later,

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Toney saw appellant in the shop, in his wheelchair, approaching Francois. Toney testified that he could not hear their conversation.

After about a minute, appellant left, accompanied by Thompson. They returned about five minutes later. Toney saw that appellant was holding a file with papers and a handgun. Appellant handed the papers to Francois, then said, "you going to give me my money or take this gun." Toney understood that statement as a threat. He also saw appellant point the gun at Francois's face.

Toney testified that Francois walked away toward Western Avenue. Then Toney heard appellant tell Thompson that he was going to "light up the place." Toney saw appellant and Thompson moving toward Western Avenue. He saw appellant standing near the edge of the shop and the restaurant; then appellant fired the gun straight up in the air. Toney could not recall if there were any pedestrians nearby at that time.

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