People v. Moran CA4/1

Filed 10/28/26 P. v. Moran CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D086597 Plaintiff and Respondent, (Super. Ct. No. FVI23001803) v. JUAN CARLOS MORAN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Bernardino County, Debra Harris, Judge. Affirmed. Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Collette C. Cavalier, Tami F. Hennick and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent. Juan Carlos Moran appeals from a judgment following a jury trial in which he was acquitted of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2), but convicted of assault with a deadly weapon other than a firearm in violation of Penal Code section 245, subdivision (a)(1).1 He contends: (1) that the trial court erred in instructing the jury that section 245(a)(1) was a lesser included offense of section 245(a)(2); and (2) that substantial evidence did not support the conviction. We disagree. Thus we affirm. I. BACKGROUND Moran and a codefendant, Emmanuel Antonio Gomez Calderon, were each charged in an information with one count of assault with a firearm in violation of section 245(a)(2), and one count of possession of a firearm by a felon in violation of section 29800, subdivision (a)(1). The charges arose from an incident in which L.S. and his wife, C.M., reported to police that two men had attacked L.S. while he was working on a car outside his home in Barstow, that each of the two men had been armed with a gun, and that one of the two men had struck L.S. in the head with a gun, drawing blood. Footage from the responding officer’s body camera revealed L.S. stating that he knew one of the men as “Pony,” that he did not know the other man, that, during the incident, Pony was “holding like an M16” or “AR” style rifle, that “the other guy had a strap” (slang for a pistol or handgun), that the other man “hit me on the head with it,” and that he (L.S.) believed the reason for the attack was a mistaken belief on the part of the assailants that he had taken stolen fireworks from them. The footage also revealed the officer asking L.S., “Did they point the gun at you?” and L.S. answering, “Yeah.” 1 All undesignated statutory references are to the Penal Code. Penal Code section 245, subdivision (a)(1) and section 245, subdivision (a)(2) will be referenced hereafter as section 245(a)(1) and section 245(a)(2), respectively. 2  During the trial of Moran and Calderon, L.S. and C.M. each expressed reluctance to identify the defendants or to otherwise testify. (In fact, C.M. testified that she had previously been “arrested for not showing up” at court for the matter.) Nonetheless each of them identified Moran as Pony. When asked if he had seen Pony with a gun, L.S. at first testified, “No.” But then he acknowledged having testified at an earlier hearing that Pony had been holding an M16 during the incident. C.M. testified that she had been inside the home she shared with L.S. and their children at the time of the incident, that she stepped outside when she heard L.S. yelling, and that, when she did so, she saw L.S. bleeding from his head, the unknown man (i.e., Calderon) holding what looked like a big, long, black gun, and Pony (i.e., Moran) not holding any weapon at all. Asked, “Did you see Mr. Moran give the firearm, the black firearm, to” the other man, C.M. testified that she did not recall. The responding officer testified that on the day in question he responded to a service call involving a woman who had “said her husband was hit over the head with a gun.” He further testified that, on arriving at the scene, he met with L.S. and C.M. and noticed that L.S. “had about a two- inch cut at the top of his head.” In addition, the officer testified about a passage of the body camera footage, the transcript from which reads as follows: “[Officer]: Did they point the gun at you? “[L.S.]: Yeah. “[Officer]: Did they point the gun to them [presumably C.M. and the children]? 3  “[L.S.]: They were just like this. . . When [C.M.] came out, I told them . . . get you [sic] ass inside.”2 Questioned about this part of the footage, the officer testified that, as L.S. had been saying “[t]hey were just like this,” he (L.S.) had been pantomiming the manner in which one or both of the two assailants had wielded their gun or guns: “Q. [D]id he [L.S.] demonstrate anything to you at that point? “A. Yeah. He indicated they were waving the firearm back and forth. “Q. So he held it up like he was holding an invisible gun? “A. Correct.”3 The responding officer also testified that, after meeting with L.S. and C.M. in the front yard of their home, he proceeded to a house where they had told him Pony was staying; that, at that house, he found two loaded AR style guns; and that, when he later showed C.M. a photograph of those two guns, she identified one of them as the gun that she had seen with one of the defendants, on the day of the incident, when she stepped out of the house in response to L.S.’s yelling. On cross-examination the officer acknowledged that he also found two pellet guns and a BB gun at the residence and that those types of guns are 2 There appears to be no dispute regarding the reliability of the transcript of the body camera footage. 3 The testimony is ambiguous as to whether each defendant, or just one defendant, was holding a gun. 4 not firearms,4 although they might look like firearms to a lay person. In keeping with this acknowledgment by the officer, C.M. testified she “wouldn’t know the difference between a pellet gun or an actual AR-15.” In instructing the jury as to the first of the charged offenses, the trial court included instructions pertaining not only to the offense charged in that count (assault with a firearm in violation of section 245(a)(2)), but also to two other offenses that it explained were lesser included offenses of that count: assault with a deadly weapon other than a firearm in violation of section 245(a)(1); and simple assault in violation of section 240.5 In their closing arguments, each defendant’s counsel emphasized that a BB gun or pellet gun is not a firearm (see fn.4) and argued that, if a gun had been involved in the incident, the People had not succeeded in proving beyond a reasonable doubt that it was anything other than a BB gun or pellet gun. Following closing arguments, the jury returned four verdict forms as to Moran. Three of the verdict forms indicated the jury had found Moran not guilty on the two counts as to which he had been charged (assault with a firearm in violation of section 245(a)(2) and possession of a firearm by a felon 4 As the trial court instructed the jury, “a firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.” (CALCRIM No. 875.) The force that causes projectiles to be discharged or expelled through the barrel of a BB gun or pellet gun is not “the force of an explosion or other form of combustion.” (People v. Clark (2021) 62 Cal.App.5th 939, 958 [“Pellet guns and BB guns are not firearms because, ‘instead of explosion or other combustion, they use the force of air pressure, gas pressure, or spring action to expel a projectile.’ ”].) 5 The trial court did not instruct the jury as to whether either of these two offenses (assault with a deadly weapon other than a firearm in violation of section 245(a)(1) and simple assault in violation of section 240) was a lesser included offense of the other. 5 in violation of section 29800, subd. (a)(1)) and on the offense of simple assault in violation of section 240. The fourth verdict form indicated the jury had found him guilty of assault with a deadly weapon other than a firearm in violation of section 245(a)(1). Seeking clarification, the trial court addressed the jury as follows: “The instructions that were given to you directed you to only—you can only choose one of the lesser included offenses. By your going on to not guilty of the lesser included offense of simple assault, does that mean you decided that the lesser included offense, the 245(a)(1), was your intended verdict? Is that true?” The jurors were then individually polled, and each answered “Yes.” Thereafter, the trial court released the jury and, some months later, sentenced Moran. Moran timely appealed. II. DISCUSSION A. Instructional Error Moran’s first contention is that the trial court erred in instructing the jury that section 245(a)(1) was a lesser included offense of section 245(a)(2). “Errors in jury instructions are questions of law, which we review de novo.” (People v. Shropshire (2021) 70 Cal.App.5th 938, 949.) We begin our review by stating the rule that “a crime is a lesser offense necessarily included within a greater crime only if it is impossible to commit the greater crime without also committing the lesser.” (People v. Milward (2011) 52 Cal.4th 580, 586 (Milward).) Consequently, assault with a deadly weapon other than a firearm (section 245(a)(1)) is a lesser included offense of assault with a firearm (section 245(a)(2)) only if it is impossible to commit the former without also committing the latter. 6  Moran contends that neither of these offenses could possibly be a lesser included offense of the other because the two are mutually exclusive inasmuch as one requires use of a weapon that is a firearm, and the other requires use of a weapon that is not a firearm. There certainly is logic to this contention. But it nonetheless is a logic that our Supreme Court has expressly declined to embrace for a reason it has illustrated in a hypothetical, as follows: “[I]f a defendant committed an assault with a deadly weapon, and the jury was uncertain (because of conflicting evidence) whether the weapon was a firearm, that jury could not convict the defendant of assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)), because it had not been established ‘beyond a reasonable doubt’ . . . that the weapon used was ‘a deadly weapon . . . other than a firearm’ (the phrase used in section 245’s subdivision (a)(1)). Nor could the jury in our hypothetical convict the defendant of assault with a firearm (§ 245, subd. (a)(2)), because of the conflicting evidence on whether the weapon was actually a firearm.” (Milward, supra, 52 Cal.4th at pp. 587-588.) Citing this hypothetical, the court held that “the statutory phrase ‘other than a firearm’ is not an element of section 245’s subdivision (a)(1).” (Milward, supra, 52 Cal.4th at p. 587.) So doing, the court explained its rationale, with reference to the hypothetical just quoted, as follows: “To avoid placing a jury in that quandary, we conclude as follows: The statutory language in section 245’s subdivision (a)(1) that pertains to an assault with a deadly weapon ‘other than a firearm’ is not an element of the crime there described (aggravated assault). The quoted statutory phrase serves simply to distinguish an assault so committed from the slightly more serious offense of assault ‘with a firearm,’ as set forth in section 245’s subdivision (a)(2). Consequently, when, for instance, a jury is convinced beyond a reasonable doubt that the defendant assaulted the victim with a deadly weapon, but because of 7  conflicting evidence is uncertain whether the weapon was indeed a firearm, the jury can convict the defendant of aggravated assault, the crime set forth in section 245’s subdivision (a)(1).” (Milward, at p. 588.) With the words “other than a firearm” excluded from consideration as an element of section 245(a)(1), it becomes readily apparent that it is impossible to commit the crime described in section 245(a)(2) (“assault upon the person of another with a firearm”) without also committing the crime described in section 245(a)(1) (“assault upon the person of another with a deadly weapon or instrument”). In an effort to avoid the implications of Milward, Moran argues: (1) that that the passages we have quoted from that opinion are merely dicta; and (2) that, even if those passages were not dicta, they would be superseded by the reasoning in a subsequent Supreme Court opinion, People v. Aguayo (2022) 13 Cal.5th 974 (Aguayo). We are not persuaded. We begin by observing that under no circumstances could the above- quoted language from Milward be reasonably described as dicta. “ ‘Dicta is a “ ‘judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).’ ” ’ ” (Rodriguez v. Packers Sanitation Services LTD., LLC (2025) 109 Cal.App.5th 69, 81.) Clearly, the language we have quoted from Milward was indispensable to the decision in that case. Hence it cannot reasonably be said to have been “unnecessary to the decision” in that opinion. Turning to Moran’s argument that the holding of Milward is superseded by the reasoning in Aguayo, we note that this argument is premised on statements in Aguayo to the effect that the offenses described in 8 section 245(a)(1) &(2) are not identical to one another. Specifically, the court said in Aguayo that: “[W]hen the Legislature . . . established assault with a firearm as newly added section 245, subdivision (a)(2), it did not simply require the use of a firearm in subdivision (a)(2) (‘assault ... with a firearm’); it simultaneously excluded the use of a firearm in subdivision (a)(1) (‘assault . . . with a deadly weapon or instrument other than a firearm’). [Citation.] This made clear that the offenses were discrete and presumptively separate.” (Aguayo, supra, 13 Cal.5th at p. 989.) But to say that the offenses set forth in section 245(a)(1) &(2) are “discrete and presumptively separate” (Aguayo, supra, 13 Cal.5th at p. 989) from one another—meaning they are different offenses rather than just “different statements of the same offense” (id., at p. 981)—is not to say that one cannot be a lesser included offense of the other. Indeed, as manslaughter is to murder (People v. Beck and Cruz (2019) 8 Cal.5th 548, 649) and as theft is to robbery (People v. Abilez (2007) 41 Cal.4th 472, 514), two things can be true at the same time: One offense can be “discrete and presumptively separate” (Aguayo, at p. 989) from another offense, and yet still be included within that other offense. Thus we reject the argument that our high court’s holding in Milward is superseded by its discussion in Aguayo. B. Sufficiency of the Evidence Moran’s second contention on appeal is that the evidence did not suffice to support his conviction of assault with a deadly weapon other than a firearm in violation of section 245(a)(1). In examining this contention, we apply the substantial evidence standard of review. Under this standard, we review the record in the light most favorable to the judgment to determine whether it contains substantial evidence—meaning, evidence that is reasonable, credible, and of solid value—from which a reasonable factfinder 9 could conclude that the defendant is guilty beyond a reasonable doubt. (People v. Jones (2024) 105 Cal.App.5th 83, 90.) So doing, “ ‘we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment . . . . [Citation.] We resolve neither credibility issues nor evidentiary conflicts . . . .” [Citations.] A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Brown (2012) 210 Cal.App.4th 1, 8, fn. 2 (Brown).) In support of his contention that substantial evidence did not support his conviction pursuant to section 245(a)(1), Moran argues: (1) that none of the evidence presented to the jury supported a finding that Moran possessed a deadly weapon other than a firearm; and (2) that the jury’s finding that Moran was not guilty of simple assault confirms as much. 1. Evidence that Moran Assaulted L.S. with a Deadly Weapon With regard to the first of the two arguments just mentioned, Moran says “there was absolutely no evidence introduced at the trial that [he] either (1) possessed any deadly weapon other than a firearm or (2) committed an assault other than brandishing a firearm.” But this statement is incorrect. Indeed, even though a BB gun or pellet gun does not qualify as a firearm pursuant to section 245(a)(2) (see fn. 4), it may nonetheless qualify 10 as a “deadly weapon or instrument” within the meaning of section 245(a)(1)6 (Brown, supra, 210 Cal.App.4th at p. 8 [BB guns]; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 540 [pellet guns]; In re Jose A. (1992) 5 Cal.App.4th 697, 702 [pellet guns and BB guns]), and it is well settled that merely pointing a gun at another individual can suffice to establish assault with a deadly weapon. (See, e.g., People v. Hartsch (2010) 49 Cal.4th 472, 507-508 [“pointing a gun at someone in a menacing manner is sufficient to establish the requisite mental state” for assault with a deadly weapon]; People v. Laya (1954) 123 Cal.App.2d 7, 12, 16 [“[t]he mere pointing of a gun at a victim constitutes an assault with a deadly weapon whether or not it is fired”]; People v. McMakin (1857) 8 Cal. 547, 548 [evidence sufficed to establish assault even though gun pointed near, rather than directly at, victim]; People v. Raviart (2001) 93 Cal.App.4th 258, 263 [“[a]ssault with a deadly weapon can be committed by pointing a gun at another person;” citing Laya, McMakin, People v. Hunter (1925) 71 Cal.App. 315, 317-319, and People v. 6 BB guns and pellet guns are far from the only types of items other than firearms that, depending on the circumstances, have been held to qualify as deadly weapons or instruments within the meaning of section 245. Examples of other such items include “a straight pin imbedded in an apple (In re Jose R. [(1982)] 137 Cal.App.3d 269); a pillow (People v. Helms (1966) 242 Cal.App.2d 476); an automobile (People v. Claborn (1964) 224 Cal.App.2d 38); a knife (People v. Herd (1963) 220 Cal.App.2d 847); a large rock (People v. White (1963) 212 Cal.App.2d 464); a razor blade (People v. Richardson (1960) 176 Cal.App.2d 238); a fingernail file (People v. Russell (1943) 59 Cal.App.2d 660); . . . an iron bar (People v. Lee (1937) 23 Cal.App.2d 168);” and a dog. (People v. Nealis (1991) 232 Cal.App.3d Supp. 1, at p. 4, fn. 2, and p. 6.) The quantum and quality of evidence necessary to establish that something is a deadly weapon varies with the circumstances. (Brown, supra, 210 Cal.App.4th at p. 8 [“While it certainly would [be] good practice . . . to . . . introduce[ ] evidence concerning the nature of the BB gun and its ability to inflict substantial injury [citation], such evidence is not essential to establish the deadly nature of the weapon.”].) 11 Thompson (1949) 93 Cal.App.2d 780, 782]; People v. Colantuono (1994) 7 Cal.4th 206, 219 [“Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault;” quoting McMakin]; People v. Cruz-Partida (2022) 78 Cal.App.5th 32, 207-209 [citing Hartsch, Laya and McMakin].) In the present case, the jury heard evidence that Moran had pointed a deadly weapon in the form of a BB gun or pellet gun (if not a firearm) at L.S. Such evidence included the body camera footage capturing L.S.’s answer—in the affirmative—in response to the officer’s question, posed shortly after the incident: “Did they point the gun at you?” Such evidence also included L.S.’s testimony that he previously had testified to the effect that Pony had been holding an M16 during the incident. In addition, it included the officer’s testimony that, in portraying the conduct of at least one of the defendants, L.S. had pantomimed an individual holding a gun of some sort and “waving [it] back and forth.” Certainly the evidence presented to the jury was not free of ambiguity or contradiction. But the mere fact that some of the evidence presented to the jury might have supported inferences contrary to the judgment is of no consequence. As the case law makes clear, the substantial evidence standard is a “deferential standard of review” in which “findings of fact are liberally construed to support the judgment” and in which “we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings” (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981), “accept[ing] as true all evidence tending to establish the correctness of the trial court’s findings and resolv[ing] every conflict in favor of the judgment’ ” (BR.C. v. BE.C. (2024) 101 Cal.App.5th 259, 269; italics added). Consequently, 12  “ ‘[A defendant] raising a claim of insufficiency of the evidence assumes a “daunting burden.” [Citation.]’ [Citation.] The test ‘is simply whether there is substantial evidence in favor of the respondent. If this “substantial” evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld. As a general rule, therefore, we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing.’ ” (People v. Overstock.com, Inc. (2017) 12 Cal.App.5th 1064, 1079.) As we have stated ante, there was evidence in this case from which it may reasonably be inferred that Moran pointed a BB gun or pellet gun at L.S. and thereby assaulted him with a deadly weapon other than a firearm. We discern no basis on which to conclude that this evidence was not reasonable, credible, and of solid value. Thus it supports a conviction on the lesser included offense of assault with a deadly weapon in violation of section 245(a)(1). 2. Effect of Verdict Finding Moran Not Guilty of Simple Assault Moran’s second argument in support of his contention that the evidence did not suffice to support his conviction of assault with a deadly weapon other than a firearm in violation of section 245(a)(1)is premised on the fact that simple assault—an offense as to which one of the verdict forms indicated Moran was found not guilty (see ante)—is a lesser included offense of assault with a deadly weapon. (People v. Grigsby (1969) 275 Cal.App.2d 767, 775 [“the crime of simple assault is a lesser included offense of the greater crime, assault with a deadly weapon”].) The thrust of this argument is that, because the jury found Moran not guilty of an offense whose elements are necessarily included within the offense of assault with a deadly weapon, the not guilty 13 finding as to the lesser offense establishes that the jury did not find an element essential for a conviction on the greater offense. This argument might have merit were it not for the fact that the trial court sought and received clarification from the jury (see ante) when the Moran verdicts were read. The procedure the trial court employed in doing so was appropriate (People v. Carbajal (2013) 56 Cal.4th 521, 532 [“a trial court may seek clarification where a jury finds the defendant guilty of a greater offense but not guilty of a lesser included offense,” citing People v. Caird (1998) 63 Cal.App.4th 578, 589-590 and People v. Davis (1988) 202 Cal.App.3d 1009, 1014]), and it sufficed to confirm that the jury had concluded all of the elements necessary to convict Moran of assaulting L.S. with a deadly weapon in violation of section 245(a)(1) had been established. III. DISPOSITION The judgment is affirmed. KELETY, J. WE CONCUR: MCCONNELL, P. J. CASTILLO, J. 14