The opinion
Filed 12/15/21 P. v. Mariano CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B304201
(Super. Ct. No. 2018033244)
Plaintiff and Respondent, (Ventura County)
v.
KENNETH THURSTON
MARIANO,
Defendant and Appellant.
Kenneth Thurston Mariano appeals a judgment following
his conviction of assault with a semiautomatic firearm (Pen.
Code,1 § 245, subd. (b)) (counts 2, 5, 6); possession of a firearm by
a felon (§ 29800, subd. (a)(1)); and resisting arrest (§ 148, subd.
(a)(1)). The jury found special allegations as to counts 2 and 5
that Mariano personally used a firearm. (§ 12022.5, subd. (a).)
The trial court sentenced Mariano to an aggregate prison term of
13 years.
1 All statutory references are to the Penal Code.
We conclude, among other things, that substantial evidence
supports the judgment and that Mariano has not shown
prosecutorial misconduct. We affirm.
FACTS
In the early morning hours of September 23, 2018, Mariano
called Antoinette Acosta and asked to come over to her house
“and drink.” After he arrived, Steven Santana called Acosta
because he wanted to buy drugs from her. Mariano and Acosta
went to an “Airbnb” house where Santana had been staying.
Santana told Acosta the drugs were for his friend and his friend
would pay her. Acosta displayed her cocaine for sale. Santana
took the drugs then told Acosta that he would be right back and
he left.
Santana had been gone for 15 minutes. Acosta was now
worried that she was not going to be paid for her drugs. She
went through the house knocking on doors looking for Santana.
Acosta went back to the area of the home where she had placed
her drugs and noticed that her drugs were gone. She started
screaming for Santana and texted him on his cell phone.
Santana did not respond to Acosta’s phone calls and text
messages. Acosta testified that Mariano has “always been kind
of like the protector.” She told him, “[E]verything is gone. They
took the drugs.” Mariano began yelling, “Where is he?” Acosta
pointed to the area of the home where she thought Santana
might be staying.
James Zou testified that on September 23, 2018, he was
staying at that Airbnb house in Simi Valley. He woke up to the
sound of loud noises. He took a shower and heard a knock on the
door. Zou did not respond. He heard a man yelling, “Open the
door.” When Zou opened the door, he saw Mariano pointing a
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gun at him. Mariano said, “Give me money.” Mariano was three
feet away from Zou. Zou was “shocked.” Mariano saw Zou’s
wallet on the bed and he picked it up. A woman behind Mariano
said, “It’s not him.” Mariano threw the wallet back on the bed
and left.
Santana testified he was invited by a friend to come to the
Airbnb house in Simi Valley. He called his girlfriend Victoria
Haynes to join him there. While in the bedroom they heard loud
noises, arguing, and a “woman’s voice shouting.” Santana told
Haynes to go to the bathroom and lock the door. Santana then
decided to stay in the bathroom with Haynes. They heard the
bedroom door “being forced open.” Mariano kicked open the
bathroom door. He pointed a gun at Santana and said, “I need
you to pay me.” Santana gave Mariano his watch and he offered
to give Mariano the keys to his truck. Santana testified he was
“scared for [his] life.”
Haynes testified that when Mariano broke into the
bathroom and pointed the gun, she covered her eyes and was
crying. She was standing behind Santana. Mariano was
pointing the gun in her general direction.
Acosta took some items from the home before leaving. She
and Mariano drove away from the house. When they approached
a law enforcement roadblock, Mariano got out of the car and fled.
He was subsequently arrested.
Derek Poon, a crime laboratory forensic scientist
specializing in firearms, testified the gun used in the crimes is a
“45 ACP caliber,” which is “commonly known as a ‘45’ ”
semiautomatic pistol. It was in operating condition.
Mariano did not testify.
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DISCUSSION
Substantial Evidence
Mariano contends the evidence is insufficient to support his
conviction for assault with a semiautomatic firearm on counts 2,
5, and 6. We disagree.
On challenges to the sufficiency of the evidence, we draw
all reasonable inferences in support of the judgment. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the
evidence, resolve evidentiary conflicts, or decide the credibility of
the witnesses. (Ibid.)
For this offense, the People must prove that (1) “defendant
did an act with a deadly weapon that by its nature would directly
and probably result in the application of force to a person” (People
v. Golde (2008) 163 Cal.App.4th 101, 121); (2) “[d]efendant did
the act willfully” (ibid.); (3) “[w]hen defendant acted, he was
aware of facts that would lead a reasonable person to realize that
his act by its nature would directly and probably result in the
application of force to someone” (ibid.); and (4) “[w]hen defendant
acted, he had the present ability to apply force likely to produce
great bodily injury or with a deadly weapon” (ibid.).
“[A]ssault does not require a specific intent to injure the
victim.” (People v. Williams (2001) 26 Cal.4th 779, 788.)
There is well-established precedent regarding defendants
committing assault by pointing a gun at a person. “[P]resenting
a gun at a person . . . [has] been held to constitute an assault.”
(People v. McMakin (1857) 8 Cal. 547, 548.) “The mere pointing
of a gun at a victim constitutes an assault with a deadly weapon,
whether or not it is fired at all.” (People v. Laya (1954) 123
Cal.App.2d 7, 16.) “[I]t is not necessary to actually point the gun
directly at the other person to commit the crime.” (People v.
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Raviart (2001) 93 Cal.App.4th 258, 263.) Where a gun is pointed
in the general direction of a victim, a conviction may be sustained
where the gun “was in a position to be used instantly.” (People v.
Thompson (1949) 93 Cal.App.2d 780, 782.)
“The drawing of a weapon is generally evidence of an
intention to use it.” (People v. McMakin, supra, 8 Cal. at p. 549.)
“[Y]et that evidence may be rebutted when the act is
accompanied with a declaration, or circumstances, showing no
intention to use it.” (Ibid.)
In People v. Chance (2008) 44 Cal.4th 1164, the defendant
pointed a gun at a place where he believed a police officer would
appear. When the officer told him to drop the weapon, he
lowered it and “flipped it behind him.” (Id. at p. 1169.) The court
held he could be convicted of assault. It said, “[I]t is a
defendant’s action enabling him to inflict present injury that
constitutes the actus reus of assault. There is no requirement
that the injury would necessarily occur as the very next step in
the sequence of events, or without any delay.” (Id. at p. 1172,
italics added.) “[A]ssault does not require a direct attempt at
violence.” (Ibid., italics added.)
In People v. Miceli (2002) 104 Cal.App.4th 256, the court
discussed the elements of the crime of assault with a
semiautomatic firearm. It said, “To point a loaded gun in a
threatening manner at another . . . constitutes an assault,
because one who does so has the present ability to inflict a violent
injury on the other and the act by its nature will probably and
directly result in such injury.” (Id. at p. 269.) Nothing in case
law “indicates that assault with a semiautomatic weapon
requires proof the gun was operable as a semiautomatic at the
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time of the assault.” (Id. at p. 270.) “ ‘A firearm does not cease to
be a firearm when it is unloaded or inoperable.’ ” (Ibid.)
Mariano contends the evidence in count 2 relating to victim
Zou is not sufficient for assault with a deadly weapon. We
disagree. Mariano claims that there are inferences that could be
drawn from the evidence to support his defense. But the issue is
not what evidence or inferences may support appellant, it is
whether substantial evidence supports the judgment. Mariano
notes that he did not fire a weapon or strike Zou with it. But that
type of conduct is not required to prove assault with a deadly
weapon. (People v. Chance, supra, 44 Cal.4th at p. 1172; People v.
Laya, supra, 123 Cal.App.2d at p. 16.) He held a deadly weapon
and he consequently had the present ability to apply force likely
to produce great bodily injury. (People v. Miceli, supra, 104
Cal.App.4th at p. 269.) Mariano pointed the gun at Zou and
demanded money. Zou was “shocked” by having the gun pointed
at him. A trier of fact could find that was a reasonable reaction
to Mariano’s conduct. Because Mariano pointed the weapon and
asked for money, Zou could reasonably believe that if he resisted
or did not comply with Mariano’s demands, he would be shot.
Mariano has not shown why the jury could not also reasonably
infer that he knew the consequences when he pointed the gun
and acted willfully.
Mariano ultimately realized that Zou was not the person he
sought to target and he threw the wallet back on the bed. But
this does not change the result. Mariano may not commit an
assault on one victim and then claim immunity from criminal
liability because he later discovered he had made a mistake
regarding his ultimate target victim. (People v. Lee (1994) 28
Cal.App.4th 1724, 1734-1736; People v. Williams (1980) 102
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Cal.App.3d 1018, 1028; see also People v. Chance. supra, 44
Cal.4th at pp. 1168-1169, 1176 [fact that defendant changed his
mind and tossed the gun away did not immunize him from
criminal liability for assault for his prior act of pointing the gun].)
Mariano contends the evidence is insufficient for conviction
of assault in count 5 regarding Santana. He claims he did not
fire the gun or strike Santana with it. But those are not
necessary elements for a conviction. (People v. Chance, supra, 44
Cal.4th at p. 1172; People v. Laya, supra, 123 Cal.App.2d at
p. 16.) Mariano engaged in a course of conduct that resulted in
fear and intimidation for Santana. While Santana was hiding in
the bathroom, Mariano broke into the bedroom. He kicked open
the bathroom door. He pointed a gun at Santana and demanded
money. Mariano was pointing the gun at Santana’s head at close
range. Santana was afraid. He gave Mariano his watch and
offered to give him the keys to his truck. The evidence is
sufficient. (Ibid.; People v. Miceli, supra, 104 Cal.App.4th at
p. 269.)
As to count 6, Mariano contends there is insufficient
evidence to support a conviction for assault against Haynes. He
claims “upon finding Haynes with Santana in the bathroom, he
did not engage her.” Mariano argues that he “directed his
demand for money solely to Santana” and he “did not direct
Haynes to do anything and made no demands of her at all.”
But in making these arguments, he does not consider the
reasonable inferences the jury could draw from Haynes’s
testimony to support a conviction on count 6. She was standing
behind Santana. She said Mariano was pointing the gun in her
general direction. She consequently was in the potential line of
fire of that weapon. The gun did not have to be pointed directly
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at her. (People v. Raviart, supra, 93 Cal.App.4th at p. 263.) It is
sufficient that while pointing the weapon, it “was in a position to
be used instantly.” (People v. Thompson, supra, 93 Cal.App.2d at
p. 782.) Mariano had “the present ability to inflict a violent
injury on [her].” (People v. Miceli, supra, 104 Cal.App.4th at
p. 269.) His act “by its nature will probably and directly result in
such injury.” (Ibid.)
Mariano claims, “As to Haynes, the conviction is
particularly confounding because the jury rejected the
enhancement alleging personal use of a firearm.” But “[u]nder
section 954, the jury’s ‘not true’ finding on the personal firearm
use enhancements may be logically inconsistent with a finding
that defendant was the direct perpetrator of the charged offenses,
but, by statute, the inconsistency is not grounds for reversal
because substantial evidence supported the verdict.” (People v.
Miranda (2011) 192 Cal.App.4th 398, 407.)
Citing McMakin, Mariano claims he rebutted the inference
of his intent to use the gun because his act was “accompanied
with a declaration, or circumstances, showing no intention to use
it.” (People v. McMakin, supra, 8 Cal. at p. 549.) But while
pointing the gun at his victims, he made no statement indicating
that he would not shoot them. Instead, he used the gun, and the
risk a pointed gun poses, to demand money from them.
Mariano’s trial counsel told jurors that Mariano’s actions
were justified by the necessity to try to obtain the return of
property that had been taken. But the action of breaking down
doors, pointing a gun, demanding money for the return of items,
including illegal drugs, is not conduct that would support the
defense of necessity. (People v. Miceli, supra, 104 Cal.App.4th at
p. 267.)
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Mariano’s trial counsel told the jury that they should not
convict Mariano of assault because his actions in confronting Zou
and Santana were reasonable based on what he knew at the time
he acted about the house and the two men. But the jury rejected
this claim by its verdicts.
Prosecutorial Misconduct
Mariano contends the judgment must be reversed because
the prosecutor in argument committed misconduct by misstating
the law. We disagree.
“A prosecutor commits misconduct under state law if he or
she uses ‘deceptive or reprehensible methods’ in an attempt to
persuade the jury.” (People v. Hill (1998) 17 Cal.4th 800, 845.)
Where a defendant is objecting to a prosecutor’s statements to
the jury, “the question is whether there is a reasonable likelihood
that the jury” applied them “in an objectionable fashion.” (People
v. Samayoa (1997) 15 Cal.4th 795, 841.)
Mariano highlights three comments the prosecutor made in
her argument to the jury. But he did not object at trial to the
first two of these comments that we will discuss. That normally
constitutes a forfeiture of these claims on appeal. (People v.
Seumanu (2015) 61 Cal.4th 1293, 1328.) But even on the merits,
the result will not change.
The prosecutor made the following comments to the jury in
argument: “[I]t doesn’t really matter whether [the defendant is]
intending to point [the gun] at Mr. Santana or intending to point
it at Ms. Haynes. They are standing next to each other. He is
committing assault on both of them with that firearm because
they were in fear for their lives, and in fear of the defendant
when he pointed the gun in their direction.”
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This was a proper comment in discussing the evidence
about Mariano pointing the gun in the direction of Santana and
Haynes. The prosecutor did not mislead the jury about the facts
or the law of assault involving pointing a gun in the direction of
multiple victims. Her point was that whether Mariano intended
to point it at Santana or Haynes, they were both in the line of fire
because they were standing together and he pointed it in their
direction. (People v. Miceli, supra, 104 Cal.App.4th at p. 269;
People v. Raviart, supra, 93 Cal.App.4th at p. 263 [“Assault with
a deadly weapon can be committed by pointing a gun at another
person . . . , but it is not necessary to actually point the gun
directly at the other person to commit the crime”]; People v.
Thompson, supra, 93 Cal.App.2d at p. 782 [“While [appellant] did
not point the gun directly at them or either of them, it was in a
position to be used instantly”].)
The prosecutor stated, “Element one of Counts 2, 5, and 6
has been proven to you beyond a reasonable doubt. The
defendant held each of those victims at gunpoint by extending
that firearm to their chest from three feet away, an act that by its
nature would directly and probably result in the application of
force to a person, if he chose to use it. He did that act willfully,
and when he acted, screaming at them that he wanted money,
yelling at them, not explaining anything, clearly he’s leading a
reasonable person to realize that that act by its nature could
directly and probably result in the application of force.”
This was a summary of the People’s evidence and Mariano
has not shown that the prosecutor misstated the law or the
required elements of assault. (People v. Miceli, supra, 104
Cal.App.4th at p. 269; People v. Golde, supra, 163 Cal.App.4th at
p. 121.)
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Mariano objected to a third comment by the prosecutor that
the trial court overruled. He notes that there are four elements
that have to be proved for assault. Element one is “[t]hat
defendant did an act with a deadly weapon that by its nature
would directly and probably result in the application of force to a
person.” (People v. Golde, supra, 163 Cal.App.4th at p. 121,
italics added.) The third element is, “[w]hen defendant acted, he
was aware of facts that would lead a reasonable person to realize
that his act by its nature would directly and probably result in
the application of force to someone.” (Ibid., italics added.)
During her argument, the prosecutor stated, “[W]hat
element one tells you is that the defendant did an act with a
firearm that by its nature would give a reasonable person the
idea that it could be used to perform a harmful or offensive
touching against them.”
Mariano contends the prosecutor “misstated the law,
combining the first and third elements of assault.” This was a
mistake. But what Mariano does not mention is that later in her
argument the prosecutor correctly stated the first and third
elements during arguments about the evidence supporting the
People’s case. “Placed in context, the statement appears to have
been a slip of the tongue, a reporting error, or at most a harmless
mistake.” (People v. Najera (2006) 138 Cal.App.4th 212, 222.)
Mariano does not claim that the trial court erred in instructing
the jury on the elements of assault. “[A]rguments of counsel
generally carry less weight with a jury than do instructions from
the court.” (Boyde v. California (1990) 494 U.S. 370, 384.) The
court’s instructions “are viewed as definitive and binding
statements of the law.” (Ibid.) “The trial court correctly
instructed the jury to follow the court’s instructions, not the
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attorneys’ description of the law, to the extent there was a
conflict. We presume the jury followed that instruction.”
(Najera, at p. 224.) “In light of those instructions, we reject the
notion that the reference could have confused or misled the jury.”
(People v. Tully (2012) 54 Cal.4th 952, 1023, fn. 28.) The request
for reversal fails because the “evidence of defendant’s guilt was
overwhelming.” (People v. Mendoza (2007) 42 Cal.4th 686, 704.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
Linda L. Currey, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
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