(Super. Ct. Nos. MF032111A & MF032581A)
The opinion of the court was delivered by: Blease, Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On November 8, 2009, Larry Redd was driving his truck to Manteca, California when he was "waved . . . down" by defendant Mario Garcia Castaneda. Redd pulled into a nearby gas station and stopped his truck near the gas pump. Defendant followed, parking his car in front of Redd's.
Defendant then got out of his car and, according to Redd, put a gun in Redd's face, told Redd to "reach for it," then struck Redd in the face with the gun. According to Redd, defendant also said, "I should kill you. You trying to set me up. You know, you set me up to be killed," then walked toward the front of Redd's truck.
Redd put his truck in reverse and drove to his mother's house. At his mother's house, Redd told his wife and mother what happened at the gas station. Shortly thereafter, Redd returned to the gas station along with his wife.
Back at the gas station, Redd asked the cashier if there were surveillance cameras; she said there were none. Redd also asked the cashier if she had seen the incident; she had not. Redd then asked her to call the police but the cashier refused. Redd called the police from a cell phone.
Police officers, including Officer Shawn Cavin, arrived at the gas station a short time later. The cashier gave Officer Cavin a cell phone that was found by another customer. Upon inspection, the phone turned out to be defendant's.
Two days later, on November 10, 2009, City of Manteca Police Officer John Moody was on patrol when he saw defendant standing in the street near a parked car. A "be on the lookout" had issued for defendant, so Officer Moody approached him and asked his name. Defendant said, "my name is Eric," and began running from Officer Moody. Officer Moody ran after him, yelling for defendant to stop.
Running behind defendant, Officer Moody saw defendant take a gun out of his pocket and toss it in a side yard. According to Officer Moody, he also saw defendant toss a baggie of what later proved to be methamphetamine into someone's back yard. Additional officers soon arrived and set up a perimeter; trapped, defendant ran into a garage through the side door and locked himself in. The police quickly opened the garage with the remote garage door opener and found defendant lying face down on the garage floor. Defendant was arrested and taken into custody.
Defendant was subsequently charged with assault with a firearm (Pen. Code, § 245, subd. (a)(5) - count I), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) - count II), making criminal threats (Pen. Code, § 422 - count III), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1) - count IV), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) - count V), resisting or obstructing an officer (Pen. Code, § 148 - count VI), and giving false information to a police officer (Pen. Code, § 148.9 subd. (a) - count VII). It was further alleged, as to counts I and II that, during the commission of those crimes, defendant personally used a firearm.
Defendant pleaded not guilty to all the charges and sentencing enhancement allegations. Jury trial began in February 2010. Following the close of the prosecution's case, defendant moved, pursuant to Penal Code section 1118.1, for a verdict of acquittal on counts II, V, and VII. The court granted defendant's motion as to count VII, finding the prosecution failed to prove defendant was "detained" when he ...