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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The trial court sentenced defendant Alan Nogueda to a prison term of 26 years and 8 months after a jury convicted him of four counts of assault with a semiautomatic firearm, one count of corporal injury to the parent of his child, one count of false imprisonment, two counts of making criminal threats, one count of endangering the health of a child, and two other misdemeanor violations. The jury found true the allegations that defendant willfully and unlawfully personally used a firearm as to all counts on which he was convicted, except two.
The victims were defendant's four- and one-half-month-old daughter, his daughter's mother, and his own mother.
Defendant argues there was insufficient evidence that he had the present ability to commit an assault because there was no evidence the gun was loaded. He argues the trial court should have sua sponte instructed that there was no present ability to commit an assault if the gun was unloaded, and that his trial counsel was ineffective for not requesting such an instruction.
He claims he received ineffective assistance of trial counsel because his counsel failed to object to certain testimony. He also claims two of his prison sentences should have been stayed pursuant to Penal Code section 654.*fn1
We shall direct the trial court to stay two of defendant's prison sentences pursuant to section 654, but shall otherwise affirm the judgment. Defendant's aggregate prison term will remain unchanged.
FACTUAL AND PROCEDURAL BACKGROUND
Lorena Aramburo was the mother of defendant's daughter. On the date of the incident in question, July 2, 2010, Aramburo and defendant were no longer in a relationship, because Aramburo ended the relationship when defendant went to jail. However, Laura Rodriguez, defendant's mother, helped Aramburo watch the baby.
On July 2, 2010, the baby was staying with Rodriguez, and Aramburo went there to pick her up around 8:00 p.m. Rodriguez's other son, Marcelino, was also at Rodriguez's house. Defendant arrived at the house, and Aramburo got up to leave. She testified that she saw defendant do something with his hands, but did not see anything in his hands. At trial, she acknowledged that she said defendant came in carrying a gun in her earlier testimony at the preliminary hearing. She testified at trial that she heard a click that sounded like he was loading a gun. She testified she thought he was doing it just to scare her, and that the gun was just a toy.
Defendant said he wanted to talk to Aramburo. She did not want to talk to him, so she picked up the baby and started to walk out the door. Defendant followed her as she walked to her truck. He grabbed the baby's car seat, saying all the while that he wanted to talk to her. They began arguing. He accused her of going out with someone else.
Aramburo acknowledged that she had stated at the preliminary hearing that defendant pulled a gun out, but testified at trial she could not say for sure it was a gun. She testified that she was sitting in her truck when defendant began hitting her. She testified he hit her repeatedly with his fists and with the gun, and held the gun against the side of her head and told her he was going to kill her. She no longer thought the gun was a toy. He bit her on her nose, cheek, lip, and ear.
Aramburo slid out of the truck onto the ground, hoping defendant would quit hitting her. He did not stop, however. A neighbor arrived and pleaded with him to stop and calm down. Defendant did not stop, but went on hitting Aramburo, and began kicking her. Defendant's mother and brother, Marcelino, came out to the truck. They tried to stop defendant by grabbing and pulling at him, but he went on as if he was crazy and the only thing he wanted to do was hurt Aramburo.
Finally, defendant calmed down. Then Aramburo's cell phone rang. Defendant answered it. He started arguing with the person on the phone, and said "[s]omething about Surenos or something like that." The person on the phone was an acquaintance of Aramburo's brother. He was calling because he wanted to talk to Aramburo's brother. Defendant threw down the phone and said he was going to kill Aramburo, called her a bitch, then hit her again.
Aramburo tried to run away from defendant, but he grabbed her, threw her on the ground, and tried to hit her again. His mother intervened, but he continued to hit and kick Aramburo. Aramburo was able to get near the neighbors for protection.
Defendant then grabbed the baby. His mother implored him to think of the baby. He said, "Well, what's the big deal? The kid isn't even mine." At this point, one of the neighbor's took Aramburo into her trailer home.
Officer Jerry Watson responded to the scene and interviewed Aramburo. Aramburo was crying and hysterical. She said that defendant held a gun to her head. She also told him that defendant pointed a gun at both Rodriguez and the baby. Officer Renaldo Monterrosa interviewed Rodriguez. Rodriguez told him that defendant had assaulted her when she tried to intervene. Rodriguez told Monterrosa that defendant threatened to kill both of them. He also held the gun while holding the baby, and said he was going to kill it because it was ...