P. v. Ford

Filed 10/10/06 P. v. Ford CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Los Angeles County Superior Court, Arthur Jean, Judge. Affirmed in part, reversed in part and remanded with directions.

Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Richard T. Breen, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

A jury convicted George Edward Ford II of four counts of robbery and found true the special allegation he had personally used a firearm in committing each of the offenses. On appeal Ford contends there is insufficient evidence to support the firearm enhancement as to one of the robberies and the jury relied on a legally inadequate theory in finding the firearm-use enhancement true as to that offense and two others. We modify the judgment to correct the unauthorized sentence imposed by the trial court, but in all other respects affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Employees at three movie theaters were robbed at gunpoint. An amended information charged Ford, his father George Edward Ford I and Reginold Wilson with committing one count of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1))[1] and four counts of robbery (§ 211). As to all counts, the information specially alleged Ford had personally used a firearm (§ 12022.53, subd. (b)). It further alleged as to all counts Ford had suffered six prior serious or violent felony convictions within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), and had served six separate prison terms for prior felony convictions (§ 667.5, subd. (b)). Before trial the trial court dismissed the kidnapping charge in furtherance of justice. (§ 1385.)

2. Count 2: The May 18, 2003 Robbery

On May 18, 2003 theater employees Veasna Penh, Aronald Harper and Boroth Chim were closing the AMC Pine Square Theater in Long Beach when Ford and his father entered the theater armed with guns and demanded money. Ford pressed a gun against Penh’s back and forced him to open the theater’s safe. Ford took $8,000 from the theater’s safe and left.

3. Counts 6 and 8: The June 2, 2003 Robbery

On June 2, 2003 manager Bryan Quibuyen and assistant manager Audra Martinez were closing the AMC Marina Pacifica Theater in Long Beach when Ford and his father rushed into the manager’s office holding guns. Ford held a gun to the back of Quibuyen’s head and demanded money. He made Quibuyen and Martinez bind each other’s hands and legs with duct tape and then fled with $30,000 in cash from the theater’s daily receipts.

4. Count 9: The May 27, 2003 Robbery

On May 27, 2003 Jonathan Hill, manager of the Mann Theater in Tarzana, was in a back room of the theater when Ford, armed with a silver “revolver-style six shot,” pushed his way into the room and demanded Hill open the theater’s safe. Hill retrieved $2,000 from the theater’s several safes and gave the money to Ford as directed.

5. The Investigation

During a search of Ford’s apartment following his arrest, police officers recovered a silver Interarms brand .38-caliber revolver, a black Gamo BB gun, $5,700 in cash and a tupperware container in which officers found false identification papers. The investigating officer testified as to the items recovered from Ford’s residence, and photographs of those items were introduced into evidence without objection.

6. Verdict and Sentencing

The jury found Ford guilty of all four counts of robbery and found true each of the attendant firearm-use enhancements. In a bifurcated proceeding the trial court found all prior conviction allegations to be true.

The trial court sentenced Ford to an aggregate state prison term of 95 years to life, consisting of three consecutive 25 years to life terms for counts 2, 6 and 9, with a 25 years to life term for count 8 (the robbery of Martinez on June 2, 2003) running concurrently to count 6 (the robbery of Quibuyen on June 2, 2003)[2]; plus 10 years for the firearm-use enhancement in count 2 pursuant to section 12022.53, subdivision (b), and two 5-year enhancements pursuant to section 667, subdivision (a).[3] The trial court struck the remaining section 12022.53, subdivision (b), enhancements as to counts 6, 8 and 9, as well as the section 667.5, subdivision (b), allegations in furtherance of justice and failed to impose the section 667, subdivision (a), enhancements on the remaining counts, reasoning “the underlying sentence is sufficient in itself.”

CONTENTIONS

Ford contends introduction into evidence of the photograph of the BB gun found in his home improperly allowed the jury to rely on a legally inadequate theory to find Ford had used a firearm in committing the robberies charged in counts 2, 6 and 8; there is insufficient evidence to support the jury’s finding he personally used a firearm in committing the robbery charged in count 2; and his presentence custody and conduct credits were incorrectly calculated.

DISCUSSION

1. Substantial Evidence Supports the Firearm-use Enhancement as to Count 2[4]

Section 12022.53, subdivision (b), provides, “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including robbery] personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. . . .” A “firearm” is defined as “any device designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.” The firearm need not be operable. (§ 12001, subd. (b); see also CALJIC No. 17.19; Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3146.) A BB gun, which expels metal projectiles by pressure from compressed gas, does not fall within this statutory definition (see In re Jose A. (1992) 5 Cal.App.4th 697, 701-702),[5] nor, for that matter, does a toy or imitation gun. (See People v. Jackson (1979) 92 Cal.App.3d 899, 903, fn. 7.)

Ford contends that, because the only evidence describing the weapon used in the robbery charged in count 2 was Harper’s testimony on cross-examination that the gun was “darker” than silver, almost black,[6] and the only black gun recovered from Ford’s apartment was a BB gun, there is no substantial evidence from which the jury could have inferred a firearm was used in count 2.

The character of a weapon may be shown by circumstantial evidence, including testimonial descriptions of the weapon and its role in the commission of the crime. (See, e.g., People v. Dominguez (1995) 38 Cal.App.4th 410, 421 [victim’s testimony he felt a cold steel object pressed against him, coupled with defendant’s threat to kill the victim, constituted substantial evidence weapon used was a firearm]; see also People v. Green (1985) 166 Cal.App.3d 514, 517 [substantial evidence supported conclusion firearm used within meaning of § 12022.53, subd. (b), when victim never saw weapon but heard it cocked and bullets were found in defendant’s possession]; cf. People v. Rodriguez (1999) 20 Cal.4th 1, 12-13 [defendant’s statements and behavior while making armed threat against victim may warrant jury’s finding weapon was functional and loaded].) Here, there was ample evidence from which the jury could have inferred a firearm was used in connection with the robbery charged in count 2.

Chim specifically testified Ford waived “a handgun” at him, directing Chim to come toward him. Penh testified Ford pushed the gun against his back when he demanded money and later told the employees if they did not remain inside the theater he would “blow [their] heads off.” Whether or not the jury believed the handgun used was the same silver revolver recovered from the apartment, there is plainly substantial evidence to support the jury’s finding that Ford used a firearm (and not a BB gun) to commit the robbery.

2. The Jury Was Not Presented with a Legally Inadequate Theory in Support of the Firearm-use Enhancements in Counts 2, 6 and 8

Ford contends the People’s introduction into evidence of photographs of both the BB gun and the revolver found at his home presented the jury with two different theories to support the firearm-use enhancements in counts 2, 6 and 8.[7] According to Ford, one theory (that the silver revolver found in his apartment was used in the robberies) was legally adequate to support a firearm enhancement; the other theory (that the black BB gun was used) was legally inadequate. Relying on People v. Green (1980) 27 Cal.3d 1 (Green) and People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), Ford urges, because there is no basis to determine whether the jury relied on a legally inadequate theory in support of its firearm-use enhancement findings, these three enhancements must be stricken.[8]

In Green, supra, 27 Cal.3d at page 69, the California Supreme Court stated the general rule, “[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilty rested, the conviction cannot stand.” The Green Court held this general rule required reversal of a conviction when the alternate theory is either legally erroneous -- for example, based on inadmissible evidence or an improper instruction (id. at pp. 69-70) -- or “when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground.” (Id. at p. 70.)

In Guiton, supra, 4 Cal.4th at pages 1122-1128, the California Supreme Court reviewed Green in light of the United States Supreme Court’s then-recent decision in Griffin v. United States (1991) 502 U.S. 46 [112 S.Ct. 466, 116 L.Ed.2d 371] (Griffin), which recognized, based on federal law, a distinction between legal error or a mistake of law, on the one hand, which is subject to the rule generally requiring reversal, and insufficiency of proof or a mistake concerning the weight or the factual import of the evidence, which does not require reversal when another valid basis for conviction exists. (Griffin, at p. 59.) The Guiton Court harmonized Green and Griffin by observing the United States Supreme Court had “carefully distinguished between two types of cases involving insufficient evidence: (a) those in which ‘a particular theory of conviction . . . is contrary to law,’ or, phrased slightly differently, cases involving a ‘legally inadequate theory’; and (b) those in which the jury has merely been ‘left the option of relying upon a factually inadequate theory,’ or also phrased slightly differently, cases in which there was an ‘insufficiency of proof.’ [Citation.] The former type of case is subject to the rule generally requiring a reversal; the latter generally does not require reversal if at least one valid theory remains.” (Guiton, at p. 1128.)

Ford does not contend there is no evidence he used a firearm within the meaning of section 12022.53, subdivision (b), in committing the robberies charged in counts 6 and 8.[9] Rather, he asserts there is also affirmative evidence in the record (the photographs of the two weapons recovered from his residence -- the silver revolver and the black BB gun) from which it could reasonably be inferred he used only a BB gun. If the trial court had instructed the jury or the prosecutor had argued using a BB gun was sufficient to return a true finding on the firearm-use enhancements, Ford would be correct in asserting there was Green-Guiton error because, in that case, the jury would have been permitted to rely upon a legally inadequate theory that is contrary to law. (Guiton, supra, 4 Cal.4th at p. 1128.) The trial court did not give any such legally flawed instruction.[10] Nor did the prosecutor ever argue, directly or indirectly, that Ford had used the BB gun in committing any of the robberies or that, if he had, the jury could nonetheless find he had used a “firearm.” Although the prosecutor introduced into evidence photographs of both the silver revolver and the black BB gun, she also identified and introduced into evidence a digital photograph of $5,700 in cash, which was found together with the two guns in dresser drawers in a bedroom in Ford’s residence at the time of his arrest. The officer who conducted the search of the residence also testified he found a box with ammunition in the bedroom, as well as a tupperware container next to the bed with identification documents, one of which was in Ford’s name and one of which was in another name but had Ford’s picture on it. The BB gun, like the ammunition box and the false identification, introduced into evidence without objection, may well be factually irrelevant to either the robbery charges or the firearm-use enhancements; but this evidence, standing alone, does not present the jury with a legally inadequate theory for conviction.

Similarly, the prosecutor’s brief comment in her final closing argument -- that “based on [the victims’] testimony and what was found in the defendant’s own home, he is guilty of each of the counts of robbery and guilty of using a gun for each of those robberies”-- did not “impliedly” assert that use of the BB gun was sufficient to support a true finding on the firearm-use enhancements. That broad allusion to the post-arrest search of Ford’s home and seizure of contraband necessarily included within its scope the silver revolver, the bundle of cash and Ford’s false identification papers, as well as, perhaps, the BB gun and the box of ammunition. At most, the introduction of those items into evidence left the jury with a factually inadequate theory upon which to find the firearm enhancement true.

Moreover, viewed in the context of Ford’s defense -- mistaken identity -- it is plain that this comment refers not to the elements of the firearm-use enhancements at all but to Ford’s basic role in the robberies. Earlier in arguing to the jury the prosecutor had explained, “You got to watch them [the victims] testify and describe what happened, talk about their robbers, talk about the gun and tell you what had happened to them and how each of them said the robber had a gun. So the issue is not whether or not they were victims, whether or not they were robbed, or whether or not the robber used a gun. The issue is was the defendant one of those men or, in the case of Mr. Hill, the only man who was the robber.” For his part Ford’s counsel argued that the victims’ identifications of his client were flawed. Thus, the final summation by the prosecutor focused not on the specific elements of the charges or the firearm-use enhancements but on the fundamental issue whether Ford was one of the perpetrators. Neither the photograph of the BB gun nor the prosecutor’s generalized reference to items seized from Ford’s home created Green-Guiton error.

3. The Trial Court Imposed an Unauthorized Sentence

a. The trial court erred in striking the section 12022.53, subdivision (b), firearm-use enhancements as to counts 6, 8 and 9, and in failing to impose the mandatory enhancements for Ford’s two prior felony convictions under section 667, subdivision (a)(1)

As Ford concedes, absent error in the jury’s firearm-use enhancement findings, the trial court erred in striking the mandatory section 12022.53, subdivision (b), firearm-use enhancements on counts 6, 8, and 9. (See § 12022.53, subd. (h) [“Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section”]; see People v. Oates (2004) 32 Cal.4th 1048, 1057-1058 [failing to impose a § 12022.53, subd. (d), enhancement when its requirements were met “would, contrary to the command of section 12022.53, subdivision (h), effectively strike the subdivision (d) enhancement allegations and findings”].) As we have explained, there is no error warranting reversal of the jury’s firearm-use findings. Accordingly, the court erred in striking the section 12022.53, subdivision (b), enhancements as to counts 6, 8 and 9. (See People v. Scott (1994) 9 Cal.4th 331, 354 [imposition of an unauthorized sentence, one that “could not lawfully be imposed under any circumstance in the particular case[,]” is reviewable on appeal absent an objection in the trial court “because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing”].)

The trial court also erred by adding only 10 years to Ford’s aggregate state prison term under section 667, subdivision (a)(1), for his two prior serious felony convictions. Instead, as the People urged during the sentencing hearing, the trial court was required to impose two five-year enhancements under section 667, subdivision (a)(1), for each of the four counts on which Ford was convicted. (People v. Williams (2004) 34 Cal.4th 397, 405 [“under the Three Strikes law, section 667(a) enhancements are to be applied individually to each count of a third strike sentence”].)

Thus, considering the proper imposition of both the section 12022.53, subdivision (b), enhancements and the section 667, subdivision (a)(1), enhancements, Ford’s third strike sentence, properly calculated, should be for an aggregate state prison term of 135 years to life: three consecutive 25 years to life terms on counts 2, 6 and 9; plus separate 10-year firearm-use enhancements for each of those counts; and two 5-year serious felony enhancements under section 667, subdivision (a)(1), on each count; with a concurrent term of 45 years to life imposed for count 8. Accordingly, we modify the sentence to reflect the appropriate imposition of the mandatory sentencing enhancements.

b. Ford is entitled to three additional days of presentence credits

Ford contends, and the Attorney General agrees, he is entitled to three additional days of presentence credits. Ford received 784 days of actual custody credit and 116 days of conduct credit, for a total of 900 days. However, Ford was arrested on June 5, 2003 and sentenced on July 29, 2005. Counting the day of his arrest, the day of sentencing and including the leap-year day of February 29, 2004, Ford was in custody for 786 days, two days more than the 784 custody days credited to him. (See § 2900.5; People v. Buckhalter (2001) 26 Cal.4th 20, 30.) Ford was also entitled to 117 days of conduct credit (15 percent x 786 days). (§§ 2933.1, subds. (a), (c); 4019.)[11] Consequently, we modify Ford’s sentence to reflect 786 days of actual custody credit and 117 days of conduct credit, for an aggregate presentence credit of 903 days. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 [incorrect calculation of legally mandated custody credit is an unauthorized sentence that may be corrected at any time].)

DISPOSITION

The judgment is modified to reflect imposition of the mandatory 10-year firearm-use enhancements under section 12022.53, subdivision (b), as to counts 2, 6, 8 and 9, two 5-year enhancements under section 667, subdivision (a)(1), for counts 2, 6, 8, and 9 and an aggregate presentence custody and conduct credit of 903 days. The minute order and abstract of judgment are also ordered corrected to conform to the trial court’s oral pronouncement of judgment that the sentences on counts 2, 6, and 9 are to run consecutively and the sentence on count 8 is to run concurrently to count 6. As modified, the judgment is affirmed. The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J. WOODS, J.

Publication Courtesy of California attorney referral.

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[1] Statutory references are to the Penal Code.

[2] The transcript of proceedings reflects the trial court’s intent that counts 2, 6 and 9 run consecutively to each other, with the sentence for count 8 running concurrently to count 6. However, the minute order and abstract of judgment mistakenly state count 9 is to run concurrently to counts 2, 6 and 8.

[3] As the Attorney General explains, it appears the trial court imposed two section 667, subdivision (a), enhancements because only two of Ford’s six prior serious felony convictions were “on charges brought and tried separately.” (See In re Harris (1989) 49 Cal.3d 131, 136.)

[4] In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime or enhancement beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Reversal is required only when it appears “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

[5] Former section 12001.1, added by statute in 1988 (stats. 1988, ch. 1605, § 3, p. 5821) provided, “Except for the purposes of Section 12021, 12025, 12031, 12072, and 12703, as used in this title the term ‘firearm’ shall also include any instrument which expels a metallic projectile, such as a BB or a pellet, through the force of air pressure, CO2 pressure, or spring action or any spot marker gun, provided, that no instrument described in this section shall be considered a ‘pistol,’ ‘revolver,’ or ‘firearm capable of being concealed upon the person’ for any purpose.” (Original italics.) In 1991 the Legislature repealed section 12001.1 (stats. 1991, ch. 950, § 4) and amended section 12001 to define firearm for the purpose of any title 2 enhancement in the language used by the trial court to instruct the jury in this case. (§ 12001, subd. (b); stats. 1991, ch. 955, § 1.1.) The only exception to this definition is section 12551, which proscribes the sale of any firearm to a minor. In those instances section 12001, subdivision (g), expands the definition of firearm to include “any instrument which expels a metallic projectile, such as a BB or a pellet, through the force of air pressure, CO2 pressure, or spring action, or any spot marker gun.” (Stats. 1991, ch. 955, § 1.1.)

[6] Harper testified on direct examination “we were robbed at gunpoint,” but stated he did not remember the color of the gun used.

[7] Ford does not challenge the true finding on the firearm-use enhancement alleged in count 9: There was specific testimony a silver revolver was used during that robbery on May 27, 2003.

[8] As discussed in the next section, Ford concedes the trial court impermissibly struck three of the four firearm-use enhancements (on counts 6, 8 and 9) “in furtherance of justice,” an act expressly prohibited by statute. (§ 12022.53, subd. (h).)

[9] He does contend there is insufficient evidence he used a firearm in connection with count 2; however, as we have explained in the previous section, that contention is without merit.

[10] The trial court properly instructed the jury with the statutory definition of firearm contained in section 12001, subdivision (b). Ford did not request -- and the trial court had no sua sponte obligation to give -- a “pinpoint” instruction to the jury that a BB gun is not a firearm. (See People v. Hughes (2002) 27 Cal.4th 287, 361 [trial court has no sua sponte obligation to provide “pinpoint” instruction that describes defendant’s theory of the case or relates particular facts to the legal issues properly presented to the jury]; People v. Saille (1991) 54 Cal.3d 1103, 1119.)

[11] One Hundred Seventeen days of conduct credit should have been awarded even if calculated with reference to 784 days of actual custody. (See §§ 2933.1, subds. (a), (c); 4019.)