P. v. Libby

Filed 5/2/08 P. v. Libby CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Rodney L. Walker, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lynne McGinnis, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of robbery (count 1Pen. Code,  211), resisting an officer by force (count 2Pen. Code,  69), and false identification (count 3Pen. Code,  148.9, subd. (a)). In addition, the jury found that defendant personally used a firearm in the commission of the robbery. (Pen. Code,  12022.53, subd. (b).) On appeal, defendant contends substantial evidence does not support the jurys determination that defendant personally used a gun or that, to the extent he did, he did so menacingly. We find the verdict supported by substantial evidence and, therefore, affirm the judgment below.

I. FACTS AND PROCEDURAL HISTORY

Defendant entered a convenience store at 11:45 p.m., walked around the store, grabbed a 12-pack of beer, and placed it on the cashier counter. Defendant then exited the store. Defendant thereafter returned inside the store. After the last customer exited, defendant opened the front door, peered outside from side to side, turned around, and told the cashier to give him all the money in the cash register. The cashier asked if defendant was serious. Defendant then removed from his pocket what appeared to the cashier to be a gun and showed it to the cashier. The cashier testified that the gun was silver, was probably like a .22[,] and fit inside defendants hand. The object had a trigger and at least one barrel. The clerk characterized defendants handling of the alleged weapon as brandish[ing]. Defendant simultaneously reiterated his demand that the clerk give defendant all the money. Defendant returned the object to his pocket. Defendant then showed the object to the clerk on one more occasion before he left with the money from the register. The People offered into evidence a videotape taken from the markets surveillance cameras and two still photos showing defendant holding the object. One of the still photos is a close-up of the object in defendants hand.

At no time did defendant point the object at the clerk or refer to it as a weapon. Defendant never verbally threatened the clerk. Defendant merely held the object in his up-faced palm. The clerk could not recall whether the object had one or two barrels. The clerk confessed that he could not actually determine the caliber of the weapon. The clerk indicated that he had never seen a fake gun before. He could not remember what type of grip or handle the object had. The clerk only saw the object for a few seconds.

A clerk at another nearby convenience store alerted sheriffs deputies to defendants presence a couple hours later, after a description of defendant had been sent to local businesses. Upon the deputies arrival, defendant saw them and ran. Deputies pursued defendant with the aid of a trained dog. Deputies apprehended defendant approximately half an hour thereafter. Deputies searched defendant and the trail of their pursuit, but did not find any weapon. Deputies never saw defendant discard anything that appeared to be a gun nor were any other witnesses encountered who saw defendant with a gun.

II. DISCUSSION

Defendant contends that substantial evidence failed to support the personal use enhancement in that there was insufficient evidence that the object held by defendant was a gun or that he used it in a menacing manner. We disagree and, accordingly, uphold the judgment below.

In reviewing a claim that a criminal conviction is not supported by sufficient evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidencethat is, evidence which is reasonable, credible, and of solid value from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume in support of the judgment the existence of every fact the [jury] could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. Resolving conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . . (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Here, substantial evidence supported the jurys determination that the object displayed by defendant was a gun. Defendant first told the clerk to give him all the money in the cash register. When the clerk replied by asking if defendant was serious, defendant withdrew the object from his pocket and showed it to the clerk. Obviously, defendant intended the object to facilitate his robbery of the clerk. This factor permits the rational inference that defendant knew the object was of such ominous import that it would invoke fear in the clerk sufficient that he would comply with defendants demand. This it did. The clerk testified that he was shocked and scared after being confronted with the object. The clerk thereafter complied with defendants command to give him the money. This, in itself, suggests the object was a gun.

Moreover, the clerks testimony regarding the object was sufficient for the jury to determine that it was, indeed, a gun. The clerk testified that he had some familiarity with firearms as both his father and uncle were registered gun owners. Defendant held the object in his open, up-faced palm within five feet of the clerk. Defendant showed the object to the clerk twice. The clerk described the gun as a small caliber weapon, silver, with at least one barrel, and a trigger. He indicated the object appeared to be heavy. While he testified that he only saw the object for a few seconds, he had no doubt that the object was a gun. When asked by the People whether there was a doubt in the clerks mind as to whether the object was a gun, the clerk replied it was a realit was a gun. When asked by defense counsel whether he knew if the object was a real gun or not, the clerk responded, What I saw [was] a gun. When the video surveillance of the incident was played to the jury, the clerk pointed out the moment that defendant showed him the gun. The clerks testimony was credible and of solid value. We will not second guess the jurys obvious reliance upon the clerks credibility when determining that the object was, in fact, a gun.

Furthermore, the introduction into evidence of the video surveillance and the still photos further lends credence to the jurys determination. The videotape shows defendant approach the counter, remove something from his pocket, and show it to the clerk. The events of the videotape correspond closely with the testimony of the clerk, reinforcing the accuracy of that testimony. Though the quickness of the event and the distance of the camera make it difficult to determine from the videotape alone whether the object is a gun, the transpired events are consistent with a rational inference that what occurred was a robbery aided by the display of a weapon. The photographic stills taken from the videotape, particularly the close-up, further support the jurys determination that the object was a gun. They show an object in defendants palm consistent with the description given by the clerk. The fact that no gun was found on defendant when he was apprehended or on the course of pursuit the officers engaged in does not lend itself to the conclusion the object was not a gun. Indeed, the officers initial sighting of defendant occurred more than two and a half hours after the robbery. Defendant was not apprehended for an additional half hour. Defendant left the convenience store with a 12-pack of beer and around $100, yet when he was apprehended, he had no beer and only $25 dollars on him. Thus, defendant had plenty of time to dispose of the weapon as he did with the beer and remaining money.

Finally, assuming arguendo that the object was a gun, defendant maintains that the evidence failed to support a finding that he wielded it menacingly. The jury was instructed with CALJIC No. 17.19, which indicates that personal use of a weapon means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it. Since no evidence was adduced that defendant fired or hit someone with the gun, defendant contends the evidence must show he used it menacingly. We find that, consistent with authorities interpreting the use component of a personal use enhancement, defendants use of the gun facilitated the robbery; thus, substantial evidence supported the jurys finding.

A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements. [Citation.] The enhancement is not limited to situations where the gun is pointed at the victim . . . . [Citation.] Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime. [Citations.] []Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to judicial exemptionfrom [a personal use enhancement]. [Citation.] (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059-1060.)

Here, while defendant did not verbally threaten the clerk or point the gun at him, the only apparent purpose for showing the clerk the gun was to facilitate his completion of the robbery. Indeed, initially, defendant did not display the gun when demanding the clerk hand him the money in the cash register. Only when encountering noncompliance from the clerk did defendant remove the gun from his pocket and show it to the clerk. The display of the gun accomplished its apparent purpose. The clerk became shocked and scared and complied with defendants demand to turn over the cash. While defendant was free to argue, and in fact did argue, that the jury should find the display of the gun incidental to the robbery, the jury was under no obligation to so find. The manner and timing of defendants exhibition of the gun as recounted by the clerk and viewed in the videotape amounts to substantial evidence that defendant used it to facilitate the robbery. Therefore, the jurys finding on the personal use enhancement was proper.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

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