People v. Mariano CA2/6
B304201
Cal. Ct. App.Dec 15, 2021Background
- Early morning Sept. 23, 2018: Kenneth Mariano went to an Airbnb with Antoinette Acosta after Acosta’s drugs were taken and she sought the person who took them.
- Mariano entered the Airbnb armed with a semiautomatic .45 pistol; he pointed the gun at James Zou and demanded money, briefly took Zou’s wallet, then threw it back when told Zou was not the target.
- Mariano kicked open a bathroom door, pointed the gun at Steven Santana (and in the general direction of Victoria Haynes), demanded money; Santana surrendered a watch and offered truck keys.
- Mariano fled a police roadblock but was arrested; forensic testing showed the pistol was operable.
- A jury convicted Mariano of assault with a semiautomatic firearm (counts 2, 5, 6), possession of a firearm by a felon, and resisting arrest; he received an aggregate 13-year prison term and appealed.
- On appeal Mariano challenged sufficiency of evidence for the three assault counts and alleged prosecutorial misconduct; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — Count 2 (Zou) | Pointing an operable semiautomatic at Zou and demanding money constituted assault with a deadly weapon. | Evidence insufficient because Mariano did not fire or hit Zou and later returned the wallet. | Affirmed — pointing a gun at Zou at close range and demanding money supported assault; firing/striking not required. |
| Sufficiency — Count 5 (Santana) | Breaking in, pointing gun at Santana’s head, and demanding money produced reasonable fear and supported assault. | Insufficient because Mariano did not fire or strike Santana. | Affirmed — conduct gave Santana present fear and Mariano had the present ability to inflict great injury. |
| Sufficiency — Count 6 (Haynes) | Pointing the gun in Haynes’s general direction (she stood behind Santana) put her in the line of fire and supported assault. | Insufficient because Mariano directed demands only at Santana and did not specifically target Haynes. | Affirmed — need not point directly at a victim; being in potential line of fire suffices. |
| Prosecutorial misconduct (misstatement of law) | Prosecutor’s argument correctly applied assault law to the evidence; any slip was harmless and court instructions control. | Prosecutor misstated elements by conflating element 1 and 3, warranting reversal. | Rejected — one slip of the tongue was harmless in context; jury was properly instructed and evidence was overwhelming. |
Key Cases Cited
- People v. Miceli, 104 Cal.App.4th 256 (examining assault by pointing a loaded gun; operability not required)
- People v. Chance, 44 Cal.4th 1164 (pointing a gun can constitute assault even if defendant later discards weapon or changes course)
- People v. Laya, 123 Cal.App.2d 7 (mere pointing of a gun constitutes assault)
- People v. Raviart, 93 Cal.App.4th 258 (no need to point gun directly at a particular victim)
- People v. Thompson, 93 Cal.App.2d 780 (weapon in a position to be used instantly can support assault)
- People v. Golde, 163 Cal.App.4th 101 (elements of assault with a deadly weapon)
- People v. Ochoa, 6 Cal.4th 1199 (standard of review on sufficiency challenges)
- Boyde v. California, 494 U.S. 370 (attorneys’ arguments carry less weight than court instructions)