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People v. Arreola12/14/2001
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Jesus Arreola appeals from a judgment following conviction of two counts of attempted voluntary manslaughter, one count of mayhem, three counts of assault with a semi-automatic firearm, one count of dissuading a witness by force or threat and one count of discharge of a firearm from a motor vehicle. True findings were made on various firearm and infliction of great bodily injury allegations.
Arreloa was sentenced to a term of 35 years, 4 months to life. He appeals, arguing (1) the evidence is insufficient to sustain his conviction of intimidation/dissuading a witness and insufficient to sustain the verdict of attempted voluntary manslaughter as to victim Roger Harris, (2) the trial court erred in refusing to instruct the jury on the lesser offense of grossly negligent discharge of a firearm within the meaning of Penal Code section 246.3 and (3) the trial court erred in denying appellant's motion for a new trial based upon counsel's failure to allow appellant to testify in his own behalf.
FACTS
A. Prosecution Case
On November 13, 1998, Rodolfo Betancourt was at work, managing a nightclub in Chula Vista. Danny Lopez was working at the club as a uniformed security officer. Betancourt first noticed appellant walking in and out of the club around 9:30 p.m. Sometime later, a customer complained to Betancourt that appellant was bothering him. Appellant approached Betancourt, pointed at the complaining customer and asked in Spanish "You want me to beat him?" Appellant then went outside and quickly requested readmission to the club; however, Betancourt, intending to diffuse the situation, refused. Appellant was seen walking to his pickup truck and returned a few minutes later holding a .45 caliber semi-automatic pistol.
Moments after returning, appellant pointed his gun at Betancourt's head and said in Spanish something like "So what? Can I come in?" Betancourt repeatedly indicated appellant could come in but that he should calm down and put the gun away. Appellant moved the gun toward his waistband but suddenly said "I told you so" and pointed the gun at Lopez. Appellant fired one shot, hitting Lopez in the head.
Roger Harris was approximately 10 feet away when he saw appellant pointing the pistol at Betancourt and Lopez. After the shooting, Harris checked Lopez and then followed appellant. When appellant reached his truck and began fiddling with his keys, Harris approached from the truck's rear and said something to the effect "Hey, you maybe should wait around a while." Appellant responded by pointing his weapon at Harris, stating "Do you want the same thing to happen to you?" Harris understood this to mean "Get back, don't get involved" or "Get, scoot, scat. Don't get in the way. Don't get involved. Leave. Don't make me shoot you."
As appellant got in his truck and started to leave, Harris threw a beer bottle breaking the truck's rear window. Almost immediately after the window was broken, appellant fired three shots in rapid sequence. One of the shots passed within 18 inches of Harris and struck a nearby vehicle. Harris then hid as appellant slowly pulled out of the parking lot, apparently looking for Harris.
Appellant was stopped and arrested by Chula Vista police officers. The officers noted the truck smelled of gunpowder and found a .45 caliber semi-autom
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