People v. Gonzales CA5
F088558
Cal. Ct. App.Jan 8, 2026Check TreatmentFiled 1/8/26 P. v. Gonzales CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088558
Plaintiff and Respondent,
(Super. Ct. No. F23906810)
v.
BENNY BENITO GONZALES, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
William Wei Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Dina Petrushenko and
Jeffrey D. Firestone, for Plaintiff and Respondent.
-ooOoo-
Defendant Benny Benito Gonzales was convicted by a jury of assault with a
firearm and other offenses after he chased an ex-gang member with a gun and threatened
to shoot him. He was sentenced to an aggregate term of 19 years in prison. He contends
on appeal insufficient evidence supports his conviction of assault with a firearm. We
reject his argument and affirm.
STATEMENT OF THE CASE
Defendant Benny Benito Gonzales was charged in an information with assault
with a firearm (Pen. Code,1 § 245, subd. (a)(2); count 1), making a criminal threat (§ 422;
count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3), and
conspiracy to dissuade a witness (§ 136.1, subd. (c)(2); count 4). He was charged in the
same information with a codefendant, Emily Andrade, whose appeal we decided in a
separate opinion. (People v. Andrade (July 23, 2025, F087955) [nonpub. opn.].)
As to each count, the information alleged that Gonzales committed the offense for
the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22,
subd. (b)(1)) and that Gonzales personally used a firearm in the commission of counts
1 and 2 (§ 12022.5, subd. (a)). The information further alleged that Gonzales had
previously suffered a prior serious felony conviction (§ 667, subd. (a)(1)) as well as a
strike conviction under the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–
(d)).
The jury convicted Gonzales on counts 1 through 3 and acquitted him on count 4.
The jury also found true that he personally used a firearm in the commission of counts 1
and 2.
At the conclusion of the next phase of the trial on the gang enhancement
allegations, the jury found it true that Gonzales committed each offense for the benefit of,
at the direction of, or in association with a criminal street gang.
Following the verdicts on the gang allegations, the trial court conducted a court
trial and found true two aggravating circumstances.
1 Subsequent statutory references are to the Penal Code.
2.
At sentencing on August 23, 2024, the trial court imposed the low term of two
years for assault with a firearm, doubled to four years because of the prior strike. The
trial court enhanced the sentence by the upper term of 10 years for the gang enhancement
allegation, and enhanced it by another five years for the prior serious felony conviction.
The trial court also imposed but stayed the upper term of 10 years for the firearm
enhancement under section 654.
On count 2, the trial court imposed but stayed under section 654 the doubled low
term of 32 months. On count 3, the court imposed the doubled low term of 32 months,
plus the upper term of four years for the gang enhancement allegation, and ordered the
term to run concurrently to the term imposed on count 1.
Gonzales’s aggregate sentence was therefore 19 years.
FACTS
Gonzales is a member of the Huron Parkside Norteños gang. The victim, D., who
is male, dropped out of the Norteños gang. The gang’s members are required to do
violence on any dropout they encounter, and “snitches” must be killed.
In the afternoon on May 4, 2023, D., his stepsister A., and A.’s 16-year-old
nephew drove into the parking lot of an apartment complex in Huron. A. was driving,
and she drove past a dark blue SUV parked in front of one of the apartments. Gonzales
was inside the SUV, and he began to “mean mug” A., meaning he gave her a “mean
glare.”
Gonzales got out of the SUV and pulled a semiautomatic handgun from his
waistband. A. told D. and her nephew to get out of the car because Gonzales was
approaching, which they did. A. and D. both saw Gonzales rack the slide of the gun
backwards, “putting the firearm in a position ready to fire.”
Gonzales began chasing D. and A.’s nephew while saying, “I’ll shoot you,
dropout.” After chasing D. and A.’s nephew, Gonzales fled through the parking lot of the
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complex and jumped over a fence. D. spoke to law enforcement at the complex and
appeared nervous and scared.
DISCUSSION
Gonzales challenges the sufficiency of the evidence supporting his assault with a
firearm conviction.
I. Sufficiency of the evidence
A. Standard of review
In reviewing the sufficiency of evidence to support a conviction, we examine the
entire record and draw all reasonable inferences therefrom in favor of the judgment to
determine whether it discloses substantial credible evidence from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks
(2017) 3 Cal.5th 1, 57.) We do not reweigh the evidence or witness credibility. (People v. Albillar (2010)51 Cal.4th 47, 60
(Albillar); see People v. Young (2005)34 Cal.4th 1149, 1181
[“Resolution of conflicts and inconsistencies in the testimony is
the exclusive province of the trier of fact.”].)
We must accept logical inferences that the trier of fact might have drawn from the
evidence even if we would have concluded otherwise. (People v. Streeter (2012)
54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013)57 Cal.4th 804, 834
.) “If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (Albillar, supra,51 Cal.4th at p. 60
.) If more than one inference may reasonably be derived from the evidence, we accept the inference supporting the judgment. (People v. Manibusan (2013)58 Cal.4th 40, 87
.)
B. Elements of assault with a firearm
An assault is “an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (§ 240.) The crime of assault with a deadly
weapon requires proof of the basic crime of assault, plus proof that it was accomplished
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by use of a deadly weapon. (CALCRIM No. 875; see § 245.) Assault is a general intent
crime that does not require a specific intent to injure the victim or a subjective awareness
of the risk that an injury might occur. (People v. Williams (2001) 26 Cal.4th 779, 788,
790.)
To convict a defendant of assault with a firearm, the People must prove: (1) the
defendant did an act with a firearm that by its nature would directly and probably result in
the application of force to a person, (2) the defendant did that act willfully, (3) when the
defendant acted, he was aware of facts that would lead a reasonable person to realize that
his act by its nature would directly and probably result in the application of force to
someone, and (4) when the defendant acted, he had the present ability to apply force with
a firearm to a person. (CALCRIM No. 875; see § 245, subd. (a)(2).)
C. Sufficient evidence supports the conviction
Gonzales contends insufficient evidence supports his conviction for assault with a
firearm. He emphasizes that no evidence shows he pointed or aimed his gun at D., or that
he tried striking D. with the gun. He acknowledges, however, that “it is not necessary to
actually point the gun directly at the other person to commit” assault with a firearm.
(People v. Raviart (2001) 93 Cal.App.4th 258, 263 (Raviart).) He argues that the facts
here are distinguishable from cases where the court upheld an assault with a firearm
conviction despite the defendant not pointing the gun at the victim. We disagree. The
evidence amply supports each element of the offense.
1. The controlling principle
The law is well established that a defendant need not point a gun directly at the
victim to commit assault with a firearm. In People v. McMakin (1857) 8 Cal. 547
(McMakin), our Supreme Court held that assault occurs when a defendant brings a gun
into a position where it could be used in an instant, coupled with circumstances
demonstrating intent to use force. The court stated: “Holding up a fist in a menacing
manner, drawing a sword or bayonet, presenting a gun at a person who is within its
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range, have been held to constitute an assault. So any other similar act, accompanied by
such circumstances as denote an intention existing at the time, coupled with a present
ability of using actual violence against the person of another, will be considered an
assault.” (Id. at p. 548, italics added.) The court added, “The drawing of a weapon is
generally evidence of an intention to use it.” (Id. at p. 549.)
In McMakin, the victim was riding on horseback across land that was in dispute
between the parties, when he was intercepted by the defendant. (McMakin, supra, 8 Cal.
at p. 547.) The defendant drew a revolver and threatened to shoot the victim if he did not
leave the land. (Ibid.) The defendant held the revolver in a perpendicular line with the
victim’s body, but the gun was pointed down such that the bullet would strike the ground
before reaching the victim, if the gun were fired. (Ibid.) The victim turned his horse and
rode off, and the defendant did not pursue him. (Ibid.) The Supreme Court affirmed the
conviction for assault with a deadly weapon, holding there was sufficient evidence of
intent because the defendant “put himself in a position to use the weapon in an instant,
having only to elevate the pistol and fire, at the same time declaring his intention to do
so[.]” (Id. at p. 547.)
The principle established in McMakin is this: Assault with a firearm occurs when
the defendant brings the weapon into a position where it could be used in an instant and
takes action demonstrating intent to apply force to the victim; direct pointing is not
required.
Subsequent cases have consistently applied this principle. In Raviart, supra,93 Cal.App.4th 258
, the court upheld two assault convictions where the defendant drew
his gun with intent to shoot two officers but pointed the gun directly at only one of them.
(Id. at pp. 262, 264–265, 267.) The court stated: “By drawing the gun with the intent to
shoot the officers, defendant performed an overt act sufficient to constitute an assault on
both of them. Defendant did not have to perform the further act of actually pointing the
gun directly at Officer Wagstaff to be guilty of assaulting Wagstaff. It was enough that
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defendant brought the gun into a position where he could have used it against Wagstaff if
the officers had not shot him first.” (Id. at p. 266.)
Similarly, in People v. Thompson (1949) 93 Cal.App.2d 780 (Thompson), the
defendant pointed a gun toward two sheriff’s deputies, aiming between them and toward
the ground. (Id. at pp. 781–782.) The appellate court held sufficient evidence supported
convictions for two counts of assault with a deadly weapon, noting that while the
defendant “did not point the gun directly at [the deputies] or either of them, it was in a
position to be used instantly.” (Id. at p. 782.)
In People v. Chance (2008) 44 Cal.4th 1164 (Chance), the California Supreme
Court clarified that a defendant need not have the ability to inflict injury instantaneously
to be guilty of assault. (Id. at p. 1168.) There, the defendant was awaiting a pursuing
police officer with a firearm that had rounds in the magazine but none in the chamber.
He also was pointing the gun in the wrong direction, away from the pursuing officer. (Id.
at pp. 1168–1169.) The defendant argued he “lacked the present ability to commit assault
because his conduct did not immediately precede a battery.” (Id. at p. 1167.) The Court
disagreed, explaining that “an assault may be committed even if the defendant is several
steps away from actually inflicting injury, or if the victim is in a protected position so that
injury would not be ‘immediate,’ in the strictest sense of that term.” (Id. at p. 1168.)
These cases establish the governing framework: To prove assault with a firearm
where the gun was not pointed directly at the victim, the prosecution must show (1) the
defendant brought the weapon into a position where it could be used against the victim
instantly, and (2) the defendant demonstrated through his conduct an intent to apply force
to that particular victim. This intent can be shown through verbal threats directed at the
victim, pursuit or advancement on the victim with the weapon, positioning the weapon
toward the victim, or similar conduct directed at the specific victim.
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2. Application to this case
The evidence here satisfies each element of assault with a firearm under
CALCRIM No. 875.
First, Gonzales did an act with a firearm that by its nature would directly and
probably result in the application of force to a person. He racked the slide of his
semiautomatic handgun, which brought a round into the chamber and placed the gun in a
position ready to fire. He then chased D. while threatening, “I’ll shoot you, dropout.”
The act of pursuing a victim with a loaded, chambered firearm while threatening to shoot
him is conduct that by its nature would directly and probably result in the victim being
shot. The evidence supports a reasonable inference that Gonzales pursued D. to get in a
better position to carry out his threat.
Second, Gonzales acted willfully when he drew the gun, racked the slide, and
chased D. with the weapon. There is no dispute regarding this element.
Third, when Gonzales acted, he was aware of facts that would lead a reasonable
person to realize his conduct would directly and probably result in the application of
force. Gonzales knew he had drawn his gun, racked the slide to chamber a round, and
was chasing D. while threatening to shoot him. A reasonable person would realize that
pursuing someone with a loaded firearm while threatening to shoot would directly and
probably result in shooting that person.
Fourth, Gonzales had the present ability to apply force with the firearm. The jury
could reasonably infer from Gonzales’s racking of the slide and his threat to shoot D. that
the gun was loaded with a round chambered and ready to fire. (People v. Penunuri
(2018) 5 Cal.5th 126, 147 [“the fact that the gun was loaded may be inferred from
circumstantial evidence”].) D. was also close enough to Gonzales to see the gun,
supporting an inference that he was within range. Gonzales could have shot D. in an
instant by raising the gun and pulling the trigger.
8.
The evidence demonstrates that Gonzales brought his gun into a position where he
could use it against D. instantly and took overt action—the pursuit and the threat to
shoot—demonstrating his intent to carry out his threat. As the court explained in
People v. Hunter (1925) 71 Cal.App. 315, 319, when a defendant threatens to kill
someone and takes steps to carry out that threat with a deadly weapon, “the actual
transaction had commenced which would have ended in [violence] if it had not been
interrupted.” Here, Gonzales’s pursuit of D. with a loaded gun was the commencement
of that transaction, interrupted only by D.’s successful flight.
3. Gonzales’s arguments are unpersuasive
Gonzales contends the evidence shows only that he brandished the weapon and
threatened D., not that he attempted to commit a violent injury. This argument fails to
acknowledge the distinction between mere brandishing and assault. Brandishing involves
the rude, angry, or threatening display of a weapon, whereas assault requires conduct that
by its nature would directly and probably result in the application of force—an act that
moves beyond threatening display toward actual violence. (CALCRIM Nos. 875, 983
[brandishing a firearm or deadly weapon instruction]; § 417, subd. (a)(1)–(2)
[brandishing statute].)
Gonzales did not simply display his weapon while standing still. He racked the
slide to prepare the gun to fire, then chased D. while threatening to shoot him. The chase
itself was an overt act demonstrating an attempt to apply force. The reasonable inference
from this conduct is that Gonzales was attempting to get close enough to shoot D., and
only D.’s escape prevented completion of the violent act.
Gonzales emphasizes that he never pointed the gun directly at D. and had ample
opportunity to shoot but did not. But as McMakin, Thompson, and Raviart instruct,
pointing the gun directly at the victim is not required. What matters is whether the
defendant brought the weapon into a position where it could be used instantly and took
action demonstrating intent to use it. Here, Gonzales did both. The fact that he did not
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fire the weapon does not negate the assault; it simply means D. successfully evaded him
before Gonzales could complete the violent act he had begun.
Substantial evidence supports the assault conviction.
II. Abstract of judgment
We notice an error in Gonzales’s abstract of judgment. The term imposed on
count 3 was ordered to run concurrently, but the abstract of judgment reflects that the
term was stayed under section 654. This error must be corrected.
DISPOSITION
The judgment is affirmed. The superior court clerk is directed to prepare an
amended abstract of judgment reflecting that the term imposed on count 3 was ordered to
run concurrently. The clerk is further directed to forward certified copies of the amended
abstract to the appropriate entities.
SNAUFFER, J.
WE CONCUR:
DETJEN, Acting P. J.
MEEHAN, J.
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