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The People v. Derek Bernard Pointer

March 12, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DEREK BERNARD POINTER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 06F01113)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Pointer

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Derek Bernard Pointer of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); undesignated section references are to this code; count one), carrying a concealed weapon (§ 12025, subd. (a)(2); count two), and carrying a loaded firearm in a public place (§ 12031, subds. (a)(1), (a)(2)(A); count three). The jury also convicted defendant of resisting arrest, a misdemeanor (§ 148, subd. (a)(1); count four). In bifurcated proceedings, the jury found a prior prison term allegation (§ 667.5, subd. (b)) to be true.

Sentenced to state prison, defendant appeals. He contends that the trial court erred in allowing evidence of a gunshot residue test and the two empty shell casings found in the gun. We will reject this contention. Defendant requests that this court review the sealed transcript and any documents in connection with his motion to compel disclosure of the personnel records of two officers filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We will conclude that the trial court did not abuse its discretion.

FACTS

About 11:00 p.m. on February 3, 2006, Sacramento Police Officer Garrett Dutra responded to a call of a disturbance (drinking, being loud, and shaking a parked car) in front of 2801 Atlas Avenue. Upon arrival, Officer Dutra and his partner, Officer Spencer, observed a group of six people standing at the corner in front of 2801 Atlas Avenue. The group included defendant who was holding a half-filled bottle of Hennessey liquor. Officer Dutra got out of his patrol car and told the group to stay where they were. Defendant began walking away. Officer Dutra told defendant to stop and to approach. Defendant responded that he would return after putting his keys into his car. When Officer Dutra ordered defendant to stop, defendant ran down the street.

Sacramento Police Officer Ryan Oliver arrived at 2801 Atlas Avenue when Officer Dutra ordered defendant to stop. When defendant fled, both Officers Dutra and Oliver gave chase. Defendant ran on the sidewalk, then veered up into the front yard of 2831 Atlas Avenue, across the driveway, and then back to the sidewalk, while holding his hands in front of him, not swinging his arms. When defendant crossed the driveway at 2831 Atlas Avenue, Officer Oliver saw defendant use his left hand and throw a small shiny object. Officer Dutra saw defendant make the throwing motion but did not see an object. Instead, Officer Dutra heard a clanking sound immediately after the throwing motion.

After defendant returned to the sidewalk, he ran for another two or three hundred yards and then threw himself onto the ground where he was apprehended.

Officer Dutra returned to 2831 Atlas Avenue to look for the object discarded and, on the driveway, found a .22 caliber revolver with the initials "AK" scratched on the handle. The gun was loaded with four live rounds and two spent casings indicating that they had been fired. The gun appeared to have fresh concrete residue on it as well as grass. There were fresh scratch marks on the concrete driveway.

At the jail, a crime scene investigator used a gunshot residue test kit and swabbed defendant's hands, front and back. A criminalist analyzed the swabs and found gunshot residue on defendant's hands. The back of defendant's left hand had a particle containing lead, barium and antimony, characteristic of gunshot residue. The back of defendant's left and right hands had particles of lead and barium which were probable gunshot residue particles. Defendant's hands also had particles with lead but were not necessarily associated with gunshot residue. The criminalist explained that one characteristic gunshot residue particle and seven probable gunshot residue particles were produced when someone fired a weapon or was near when the gun had been fired or handled a firearm that had been fired.

Defendant's supervisor at a heating and air company testified that defendant worked on February 3, 2006, and that he ...


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