P. v. Edwards
Filed 12/12/11 P. v. Edwards CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
| THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARDS, Defendant and Appellant. | B229726 (Los Angeles County Super. Ct. No. SA072766) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Katherine Mader, Judge. Affirmed.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
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James Edwards (“Edwards) appeals from the judgment on his conviction for carjacking and second degree robbery. Specifically, Edwards challenges his sentence on the firearm enhancement alleged on the carjacking charge. Edwards contends the trial court lacked sufficient evidence to find that he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b) during the commission of the carjacking. As we shall explain, the evidence presented at trial was sufficient to sustain his sentence on the firearm enhancement. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
a. The Carjacking
On November 9, 2009, at noon, Carmel Canela visited the 7-Eleven on 135th Street and Lemoli Street in Hawthorne, California. Canela pulled into a parking lot on the right side of the store’s lot. Canela purchased food, came back outside, and sat inside his car with the driver’s side door open. Then, appellant and another man approached the driver’s side of Canela’s car. Appellant approached from the front of the vehicle and headed towards Canela. The other man opened the back passenger door and got into the back seat.
Appellant stood with his right arm extended down against his body, holding a black revolver at his midsection. Canela recognized appellant’s gun as a black revolver because he was familiar with firearms from watching the Military Channel and “Cops,” a popular television show. Appellant showed the revolver to Canela and demanded Canela’s keys. Canela immediately complied with appellant’s demand after having seen the revolver.
While Canela was exiting his vehicle, the man in the backseat took Canela’s cellular telephone and keys. Appellant then demanded Canela’s wallet, but Canela informed appellant that he did not have a wallet. Appellant searched Canela’s front pockets and took his money clip. After appellant took the driver’s seat, appellant proceeded to start Canela’s car but experienced difficulty putting it into gear. Appellant “eventually got the vehicle to roll back” and drove out of the parking lot. Then, Canela went inside 7-Eleven to tell the employees that his car had just been stolen by appellant and asked them to call the police.
Canela approached a man who was standing in the parking lot, David Vance, and exclaimed, “They just stole my car.” Vance said, “Do you want me to follow them and call the police or what” Canela answered, “Well, they have a gun.” Vance replied, “You know what Here’s my phone. Dial 911.” Vance did not see any weapons. Canela used Vance’s phone to call 911 because the employees inside were not helpful.
B. The Pursuit of Appellant
Gardena Police Officer Ryan Sproles was near 135th Street and Crenshaw Boulevard at approximately noon on the day of the carjacking. Officer Sproles “heard a broadcast of a vehicle that had been carjacked and taken at gunpoint from 135th Street.” The car described turned onto Crenshaw, right in front of his patrol car. Officer Sproles eventually found the car parked on the “east side of Baskin Robbins facing north.” Officer Sproles looked through the back of the windows of the vehicle from his patrol car and observed two people “moving around inside the car.” The men were “in a squatted position,” and it appeared that “they were reaching down towards the front of the car.” Sproles stayed in his car and watched both occupants jump out of the passenger side and run around the front of the car.
When the men exited the car, Officer Sproles saw them holding an object in their waistbands. Officer Sproles was unable to see what they were holding, but could tell it “was something that . . . they were trying to secure there” as both “had their hands pushed against their stomach and waist area.” The men looked at Officer Sproles in his patrol car and took off running. They “kept looking towards [Officer Sproles’] police car and were jogging away from [him] but still looking back . . . still holding their hands where their waist goes.”
Officer Sproles thought the men were going to shoot at him, so he fired shots at them from his patrol car. Officer Sproles followed the men in his patrol car as they continued to run. Appellant and the other suspect turned the corner and ran down Crenshaw Boulevard. During the pursuit, one of the bullets fired by Officer Sproles from his patrol car hit appellant. Appellant eventually stopped running, raised both hands, and surrendered. Officer Sproles pulled up to appellant in his patrol car and ordered him to the ground, face down. Appellant complied and asked, “Why did you shoot me I don’t have the gun.”
C. Procedural History
Appellant was charged with carjacking (Pen. Code,[1] § 215, subd. (a); count one) and second degree robbery (§ 211; count two). As to count one, it was further alleged that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). As to both counts, it was alleged that: (1) appellant had one serious or violent felony conviction or juvenile adjudication within the meaning of California’s Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); (2) appellant had one serious felony conviction (§ 667, subd. (a)(1)); and (3) appellant served two separate prison terms within the meaning of section 667.5, subdivision (b). Appellant pleaded not guilty and denied the special allegations. Trial was by jury. Appellant waived his right to trial by jury as to the prior conviction allegations, and the trial court found that they were true. Appellant was found guilty as charged.
The trial court sentenced appellant to state prison for a total term of 21 years. Appellant filed a timely notice of appeal.
DISCUSSION
A. Relevant Law
The standard of review for a sufficiency of the evidence claim is whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) The existence of every fact the trier could reasonably deduce from the evidence must be presumed in support of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Towler (1982) 31 Cal.3d 105, 117-118.) It is not the function of a reviewing court to reweigh the evidence, reappraise the credibility of witnesses or redetermine factual conflicts, those functions being committed to the trier of fact. (People v. Culver (1973) 10 Cal.3d 542, 548; People v. Guzman (1996) 45 Cal.App.4th 1023, 1027.) The same standard of review applies even in those cases where the prosecution relies mainly on circumstantial evidence. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.)
As explained above, appellant was convicted of one count of carjacking in violation of section 215, subdivision (a) during which appellant used a firearm within the meaning of section 12022.53, subdivision (b). Under section 12022.53, subdivision (b), “any person who, in the commission of [an enumerated felony], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.” A “firearm,” for purposes of this offense, is “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.” (§ 12001, subd. (b).) “[T]oy guns obviously do not qualify as a ‘firearm,’ nor do pellet guns or BB guns because, instead of explosion or other combustion, they use the force of air pressure, gas pressure, or spring action to expel a projectile.” (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435; § 12001, subd. (g).)
Direct or circumstantial evidence can establish that an object used by a carjacker was a “firearm.” (People v. Law (2011) 195 Cal.App.4th 976, 983; People v. Monjaras, supra, 164 Cal.App.4th at p. 1436.) It is well settled, however, that “circumstantial evidence alone is sufficient.” (People v. Monjaras, supra, 164 Cal.App.4th at p. 1436 [holding that circumstantial evidence alone, such as a victim’s testimony, is sufficient “because when faced with what appears to be a gun, displayed with an explicit or implicit threat to use it, few victims have the composure and opportunity to closely examine the object”]; see also People v. Maury (2003) 30 Cal.4th 342, 396 [inferences drawn solely from circumstantial evidence are sufficient to support a conviction]; People v. Bloom (1989) 48 Cal.3d 1194, 1208 [“circumstantial evidence is as sufficient as direct evidence to support a conviction”].)
B. Appellant Possessed a Real Firearm
Appellant contends that there was insufficient evidence to support a finding that he used “a real firearm, as opposed to a replica gun” in the carjacking and robbery. Appellant argues, “[t]he lone witness’s observation of what he thought was a revolver was insufficient to support the finding that the gun was real.” He further argues that “there was no indication that [the victim’s] assessment of the type and authenticity of the gun was accurate.” However, appellant is misguided.
When a victim testifies that a particular object looked like a gun, that testimony provides substantial evidence that the weapon was indeed a firearm. (People v. Monjaras, supra, 164 Cal.App.4th at pp. 1436-1437.) As the court in Monjaras stated, “[t]he jury was not required to give defendant the benefit of the victim’s inability to say conclusively the pistol was a real firearm.” (Id. at p. 1436.) A “defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that he used a [firearm].” (Id. at pp. 1436-1437, quoting People v. Rodriguez, supra, 20 Cal.4th at p. 13.) Verbal threats as well as “displaying and aiming [a] gun at others, [can] fully support the jury’s determination the gun was sufficiently operable [and loaded].” (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541.) Thus, jurors “may draw an inference from the circumstances surrounding the robbery that the gun was not a toy.” (People v. Monjaras, supra, 164 Cal.App.4th at p. 1437.) This is true even when no firearm is recovered, even where the victim has no experience handling or using firearms, and even where the victim concedes that he cannot “say for certain whether [the object] was ‘a toy or real or not.’” (Id. at pp. 1436-1437 [“While it is conceivable that the pistol was a toy, the jury [is] entitled to take defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if [he] did not comply with his demand”].)
In the present case, the victim, Canela, testified that he was familiar with guns and even identified appellant’s weapon as a black revolver. Nonetheless, appellant argues that “although Canela said he saw appellant with a ‘black revolver,’ there was no indication that his assessment of the type and authenticity of the gun was accurate.” However, a victim’s inability to state conclusively that the gun was a bona fide black revolver as opposed to a toy or replica “does not create a reasonable doubt, as matter of law, that the gun was a firearm.” (People v. Monjaras, supra, 164 Cal.App.4th at pp. 1437-1438; see People v. Aranda (1965) 63 Cal.2d 518, 532-533, superceded by statute on other grounds [“Testimony by witnesses who state that they saw what looked like a gun, even if they cannot identify the type or caliber, will suffice” to prove “the gun was not a toy”; see also People v. Law, supra, 195 Cal.App.4th at p. 983 [“When the evidence shows that a criminal perpetrator threateningly displays what looks like a real firearm, a conviction or sentence enhancement depending on firearm use may not be reversed simply because the victim was not an expert on guns or failed to identify the exact make and model of the firearm employed”].)
Appellant further argues that there is insufficient evidence to prove the firearm was real because he made “no reference to profanity or a threat” or “undertook any behavior suggesting that he would fire the weapon” when he ordered the victim to hand over his property. Appellant is misinformed. In People v. Monjaras, supra, 164 Cal.App.4th at page 1436, the trial court found substantial evidence to hold that the gun was real when the defendant, similar to appellant here, “displayed the handle of a black pistol tucked in his waistband” and said, “Bitch, give me your purse.” However, the appellate court in Monjaras did not uphold the trial court’s finding because of the defendant’s use of profanity during the robbery. The court held that the victim’s testimony that “the pistol looked like a gun, and it made her scared” was sufficient circumstantial evidence from which the jurors drew an inference that the gun was not a toy. (People v. Monjaras, supra, 164 Cal.App.4th at pp. 1436-1437.) As in Monjaras, appellant’s revolver, held by his side, communicated to Canela that it was a firearm when he displayed it to Canela and ordered him to hand over his keys and wallet. Therefore, appellant’s conduct in the context of the carjacking was sufficient to support the jury’s conclusion that appellant used a real gun.
Finally, appellant contends that his claim is further supported by the fact that no gun was recovered at any point. However, this does not disprove that appellant used a real firearm: “If the weapon cannot be found, the jury may . . . draw an inference from the circumstances surrounding the [crime] that the gun was not a toy.” (People v. Aranda, supra, 63 Cal.2d at p. 533.) In the present case, appellant actually admitted the existence of a gun. When appellant surrendered, he exclaimed, “Why did you shoot me I don’t have the gun.” (Emphasis added.)
In conclusion, there is sufficient evidence in the record to prove that appellant used a firearm within the meaning of section 12022.53, subdivision (b) during the commission of the carjacking. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
WOODS, J.
We concur:
PERLUSS, P.J. JACKSON, J.
