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People v. Fierro

January 11, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALEJANDRO FIERRO, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Judith Champagne, Judge. Affirmed. (Los Angeles County Super. Ct. No. BA326894).

The opinion of the court was delivered by: Mohr, J.*fn8

CERTIFIED FOR PARTIAL PUBLICATION*fn1

INTRODUCTION

Appellant Alejandro Fierro appeals from his conviction of making criminal threats and giving false information to a police officer. He contends that the verdicts are not supported by substantial evidence. We disagree and affirm the judgment.

STATEMENT OF THE CASE

In a three-count information, appellant was charged in count 1 with making criminal threats in violation of Penal Code section 422.*fn2 He was charged in count 2 with attempted criminal threats (§§ 664/422), and in count 3, giving false information to a police officer (§ 148.9, subd. (a). It was further alleged as to counts 1 and 2 that appellant had suffered a prior conviction and had not remained free of custody for five years before committing the current felonies. (§ 667.5, subd. (b).) Appellant pleaded not guilty. The jury convicted him on all three counts. After waiving a jury trial on the prior conviction, appellant admitted the allegation. He was sentenced on May 13, 2008, to a total of five years in state prison plus various fines and assessments. Appellant filed a timely notice of appeal.

STATEMENT OF THE FACTS

1. The Incident at the Gas Station

This case stems from what should have been a non-event between two motorists: appellant and Michael Ibarra. Ibarra's 14-year-old son, A.I., was a passenger in Ibarra's car.

The Ibarras and appellant never knew each other until August 8, 2007, when they met at an ARCO gas station.*fn3 Both arrived, in their respective cars, at about the same time. Ibarra believed that appellant was blocking access to the pumps. (A.I. actually believed appellant had cut them off as they approached a pump.) Ibarra asked appellant to move his car. In a sarcastic tone of voice, appellant told Ibarra to make that request in Spanish. Even though Ibarra speaks Spanish, he repeated his request in English. Again appellant told him to ask, politely, in Spanish. Appellant then went into the store to pay for his gas.

Perturbed, Ibarra followed appellant into the store and asked him again to move his car. And once more appellant said - in Spanish - to make the request politely in Spanish. When it became clear appellant was not going to cooperate, Ibarra said, "Well, fuck you, then," and returned to his car, where he waited by the driver's side for appellant to finish fueling.

Once he finished, appellant got back in his car, opened a beer bottle, and gestured as if offering some to Ibarra. Ibarra "gave him the bird as he did that," and appellant smiled at Ibarra. Appellant drove forward, slowly, until he was even with Ibarra. Again he picked up the bottle and gestured as if offering Ibarra a drink. And again, Ibarra gave appellant "the middle finger." Finally, appellant drove away.

Ibarra repositioned his car so he could fill his gas tank. As he started to use his debit card at the paypoint kiosk next to the pump, he noticed that appellant had not left after all. Instead, he had circled and was driving back toward Ibarra. Ibarra canceled his purchase and attempted to leave in order to avoid a second confrontation. Since another car was in front of his, Ibarra backed up, turned, and started forward. That is when appellant got out of his car and walked toward Ibarra.

Appellant called a nearby patron to interpret and, in an aggressive tone of voice, told this person several times to ask Ibarra, "Do you want to fuck with me now?" The interpreter said in Spanish to appellant, ...


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