People v. Gaye CA2/1 ( 2016 )

Filed 5/3/16 P. v. Gaye CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B266622
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA434000)
v.
BERNIE GAYE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie
A. Swain, Judge. Affirmed.
California Appellate Project, Jonathan Steiner, Executive Director, and Jennifer
Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
An information, filed on March 23, 2015, charged appellant Bernie Gaye
with threatening to commit a crime which would result in death or great bodily harm
to another person, in violation of Penal Code section 422, subdivision (a).1 The
information further alleged that Gaye had previously been convicted of a strike offense
(§§ 667, subds. (b)-(j), 1170.12) and a serious felony. (§§ 667, subd. (a)(1), 1192.7,
subd. (c).)
At trial, George Marroquin, a bicycle patrol employee for the Downtown
Center Business Improvement District in Los Angeles, testified that Gaye reached
into his backpack, pulled out an object that appeared to be a gun, and mimed firing it at
Marroquin. A few minutes later, Marroquin again encountered Gaye. Marroquin asked
whether Gaye had a gun, and Gaye said, “ ‘Your bulletproof vest is not shit. Two shots
to your head is all I need. I have homies that can shoot you. I’m 40 years old. You’re
just a boy.’ ” Marroquin, who does not carry a gun while on the job, testified that he felt
afraid and left the scene as quickly as possible.
The jury found Gaye guilty. Gaye admitted the prior conviction. The trial court
granted Gaye’s motion to strike his prior strike conviction pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, and sentenced him to seven years in prison.
Gaye’s sentence consisted of two years, the midterm for violating section 422,
subdivision (a), plus five years as an enhancement for his prior conviction pursuant to
section 667, subdivision (a)(1).
We appointed counsel to represent Gaye in the matter. After examining the
record, counsel filed a Wende brief raising no issues on appeal and requesting that
we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) On
November 23, 2015, we sent a letter to Gaye and to counsel. In the letter, we directed
counsel to immediately send the record on this appeal and a copy of the Wende brief to
Gaye and informed him that he had 30 days to submit by letter or brief any ground of
1 Unless otherwise specified, subsequent statutory references are to the Penal
Code.
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appeal, contention or argument he wished us to consider. We did not receive a response
from him.
We have reviewed the entire record on appeal. Substantial evidence shows that
Gaye willfully threatened to kill Marroquin, that he specifically intended his statement
to be taken as a threat, and that as a consequence, Marroquin reasonably feared that
his own life was in immediate danger. Thus, there was sufficient evidence to support
Gaye’s conviction for violating section 422, subdivision (a). (People v. Johnson (1980)
26 Cal.3d 557, 578 [substantial evidence is that which is “reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt”].) We are satisfied that Gaye’s counsel have fully complied with their
responsibilities and that no arguable appellate issue exists. (People v. Wende, supra,
25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106, 110.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
JOHNSON, J.
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