# People v. Venegas > California Court of Appeal · August 25, 1970 · 10 Cal. App. 3d 814 URL: https://www.frixlaw.com/law-library/cases/9940214 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. FRANK CARDILLI VENEGAS, Defendant and Appellant - **Court:** California Court of Appeal - **Decided:** August 25, 1970 - **Citations:** 10 Cal. App. 3d 814; 89 Cal. Rptr. 103; 1970 Cal. App. LEXIS 1893 - **Precedential status:** Published - **Opinion:** Dissent by Reppy - **Judges:** Aiso, Kaus, Reppy - **Cited by:** 87 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9940214 ## Opinion text I concur in the affirmance of the convictions but I respectfully dissent from the reversal of the imposition of sentence for the assault with intent to commit murder. I do not feel that we can say as a matter of law (in opposition to the implied finding of the trial court to the contrary) that "the evidence shows a possession only at the time defendant shot Rodriguez"; that "the possession was incidental to only one objective, namely, to shoot Rodriguez." The record clearly is supportive of the inference that defendant took possession of the weapon when he dressed at his own home and that he had possession of it for general purposes when Rodriguez picked him up so that the two could enjoy an evening of sociability with their girl friends. Certainly defendant had possession of the gun for a number of hours with absolutely no intent to use it against his friend Rodriguez. Defendant would have had possession of the weapon for some time before Rodriguez picked him up. Then, two hours went by before the couples went to the "Plush Bunny" where the incident occurred, and, inferably, there was some table sitting and drinking there before the shooting. Defendant and Rodriguez were coworkers. No quarrel had developed between *Page 829 them prior to the time Rodriguez dropped defendant off at his home. In fact, no arguments between the two men occurred during the course of the evening. Defendant's shooting of Rodriguez must have been upon a sudden impulse in a flash of anger over the circumstance that the waitress would not serve any more drinks to the party because Rodriguez was "nodding at the table" (i.e., was too intoxicated). The evidence was most positive that defendant did the shooting. Defendant's defensive effort to show that a third party had the gun seems more of a device to demonstrate that he did not have long continued possession of the weapon for general purposes than to establish that he did not do the shooting. Sherry Light testified that defendant told her later that someone had pulled a gun and that he was wrestling with it. This indicates a consciousness of guilt. Sandoval testified that he saw a third party pull out a pistol; but the judge, incidentally, said that he thought Sandoval lied. So the trial court had no belief that a third person had the gun. Finally, it is noteworthy that the judge stated, at the close of the case, that he had carefully weighed the testimony and credibility and had "concluded that the evidence was overwhelmingly in favor of guilt of the defendant on each count. . . ." (Italics supplied.) I feel that the circumstances of our case meet the criteria of People v. Hudgins, 252 Cal.App.2d 174 , 184-185 [ 60 Cal.Rptr. 176 ], and People v. Moore, 143 Cal.App.2d 333 , 342 [ 299 P.2d 691 ]. As succinctly set out by the majority in citing these cases, "[W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved." When the antecedent possession has been for so long a time as that indicated in our case, two to three hours, with such control being completely unrelated to the spontaneously occurring incident, I see no reason why there should be any requirement of a break in the chain of holding in order to say that the felon-in-possession situation could be attributed to the first segment of proprietorship. Nor do I feel that it is essential that there should be a preceding and differing specific objective for the use of the gun, such as to shoot someone else. Possession for general purposes, for use in any circumstance that might develop or be developed is sufficient. The mere fact that the weapon was used when the particular inciting incident occurred at the "Plush Bunny" (and it was one most unworthy of such a reaction) does not mean that defendant had possession of the weapon to deal with no other precipitating event if one had occurred. The charge of felon-in-possession was not limited to the "transaction" of possession during the shooting of Rodriguez. I do not think we can say at this level that the trial court did not care who had possession of the gun until it was used. Circumstances showing antecedent possession *Page 830 were present, whether such possession be characterized as distinct or otherwise. This evidence is in the category which "reasonably inspires confidence." ( People v. Redmond, 71 Cal.2d 745 , 756 [ 79 Cal.Rptr. 529 , 457 P.2d 321 ], quoting People v. Bassett, 69 Cal.2d 122 , 139 [ 70 Cal.Rptr. 193 , 443 P.2d 777 ].) I do not feel that we can say that the trial court was not convinced by it beyond a reasonable doubt, particularly considering its observation above quoted. Petitions for a rehearing were denied September 22, and 24, 1970. Reppy, J., was of the opinion that the respondent's petition should be granted. The petitions of the appellant and the respondent for a hearing by the Supreme Court were denied October 22, 1970. McComb, J., and Sullivan, J., were of the opinion that the respondent's petition should be granted. *Page 831 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9940214. Public record. Not legal advice.