Thrower
Filed
8/8/13 P. v. Thrower CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALAN TODD THROWER,
Defendant and
Appellant.
F062872
(Super.
Ct. No. F10901635)
APPEAL from
a judgment of the Superior Court of
County. W. Kent Hamlin, Judge.
Patricia L.
Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant Alan Thrower of
of a firearm. (Pen. Code, §§ 211; 212.5,
subd. (c); 12022.53, subd. (b).)
was sentenced to a total prison term of 12 years, including a mandatory 10-year
enhancement for firearm use under section 12022.53. Thrower now challenges the sufficiency of
evidence in support of the jury’s finding that he used an actual “firearmâ€
within the meaning of sections 12001 and 12022.53. He also alleges that prosecutorial misconduct
occurred during closing argument at
trial. We affirm the judgment.
FACTUAL AND PROCEDCURAL
BACKGROUND
On March 29, 2010, Alan Thrower exited a Rite Aid
drugstore in Fresno without paying for merchandise concealed in his
clothing. A store employee, Mark
Barnier, followed Thrower to the parking lot outside of the store. Thrower told Mr. Barnier to leave him
alone. When Mr. Barnier continued to
approach, Thrower produced a gun and pointed it at his chest, commanding that
he “back the fuck up.†Mr. Barnier
halted and raised his hands in the air, at which point Thrower fled on foot.
Responding to a 911 call made by Mr. Barnier, police
quickly apprehended Thrower a few blocks away from the store. He was found in possession of the stolen
merchandise and a change of clothes. The
gun was never recovered.
The Fresno County District Attorney charged Thrower by
amended information with a single count of second degree robbery. Enhancement allegations under sections
12022.5 and 12022.53 for personal use of a firearm were included in the
charging document. A subsequent jury trial
focused on the question of whether the object used by Thrower was truly a
firearm, as opposed to a replica or fake gun.
According to Mr. Barnier, Thrower brandished something
that “looked like a gun…a really small double-barrel shotgun,†about 10 inches
long. Mr. Barnier was able to view
the object for approximately four seconds while standing five to six feet in
front of Thrower. A second witness,
Adrianna Garcia, saw the object from approximately the same distance and for a
similar length of time. Ms. Garcia
estimated the gun was 12 or 13 inches long.
Based on his own experience with firearms, Mr. Barnier
thought most shotguns were at least 24 inches long. Even so, the weapon used by Thrower appeared
to him to be authentic. He acknowledged
it was possible the gun had been a fake, but testified to his personal belief
that it was a real firearm.
On cross-examination, defense
counsel asked Mr. Barnier and Ms. Garcia to view a series of photographs
(“Exhibit Vâ€) depicting an object consistent with their descriptions of
Thrower’s weapon. Both witnesses
testified that Exhibit V looked like the gun used in the robbery. It was later revealed that the photographs
were of a fake double-barrel shotgun which the defense team found on the
Internet after searching for images of replica firearms.
David Schiavon, a private investigator and competitive
sportsman, was retained by the defense as an expert witness. Mr. Schiavon testified that fake shotguns
with shortened or “sawed-off†barrels can be easily purchased from online
retailers. He had never seen a real
double-barrel shotgun measuring only 10 inches, and explained that modifying a
shotgun to that length can dangerously impair its functionality. Mr. Schiavon conceded on
cross-examination that some shotguns will function even if they are shortened
to 10 inches.
The jury returned a guilty verdict on the second degree
robbery count and found the firearm enhancement allegations had been proven
beyond a reasonable doubt. Thrower was
sentenced to the mitigated term of two years for robbery, plus a mandatory
10-year consecutive sentence under section 12022.53, resulting in a total
prison term of 12 years. Imposition of
sentence on the section 12022.5 enhancement was precluded by subdivision (f) of
section 12022.53.
Substantial Evidence Supports the Firearm Enhancements
Thrower argues there was insufficient evidence to support
the enhancement findings under sections 12022.5 and 12022.53. Both statutes impose additional penalties for
personal use of a firearm during the course of a felony. (§§ 12022.5, subd. (a); 12022.53, subd.
(b).) Section 12022.53 applies when a
defendant is found to have personally used a firearm in the commission of a
robbery. (§ 12022.53, subd.
(a)(4).) The concept of “useâ€
encompasses the act of pointing a firearm at another person or displaying a
firearm in a threatening manner. (
720, 725 & fn. 3; People v. Granado
(1996) 49 Cal.App.4th 317, 322, 325.)
For purposes of these enhancements, a “firearm†is
defined as “a device, designed to be used as a weapon, from which is expelled
through a barrel, a projectile by the force of an explosion or other form of
combustion.†(§§ 12001; 16520, subd.
(a).) The firearm need not be operable
to support a finding of use. (§
12022.53, subd. (b); People v. Bland
(1995) 10 Cal.4th 991, 1005.) However,
replica weapons, imitation or toy guns, pellet guns, and other objects that do
not shoot projectiles by force of explosion or combustion are not considered
firearms. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (
Although he concedes his “use†of an object resembling a
firearm, Thrower insists the evidence establishes an equal likelihood that the
gun was a replica. His contention is
based upon the defense evidence presented at trial, the fact that the gun was
never fired during the robbery, and the prosecution’s inability to produce the
physical object itself. Given the
legitimate possibility the gun was not real, Thrower claims the prosecution
failed to prove the enhancement allegations beyond a reasonable doubt.
Under the applicable standard of review, the jury’s
findings are reviewed for substantial evidence.
(People v. Superior Court (
evidence inquiry examines the record in the light most favorable to the
judgment and upholds it if the record contains reasonable, credible evidence of
solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial
evidence test is satisfied. [Citation.]
Even when there is a significant amount of countervailing evidence, the
testimony of a single witness that satisfies the standard is sufficient to
uphold the finding.†(
1038, 1052, italics in original.)
Reversal is not warranted unless the evidence is
insufficient to support the verdict under any hypothesis. (People
v. Bolin (1998) 18 Cal.4th 297, 331.)
We cannot reweigh the evidence, reinterpret the evidence, or substitute
our own judgment for that of the jury. (
463, 469.) “If the circumstances
reasonably justify the jury’s findings, the reviewing court may not reverse the
judgment merely because it believes that the circumstances might also support a
contrary finding.†(People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
Proof of a defendant’s use of a firearm during a robbery
does not require physical production of the weapon. (People
v. Aranda (1965) 63 Cal.2d 518, 532 (Aranda),
superseded by constitutional amendment on other grounds as stated by
451, 465.) “Testimony by witnesses who
state that they saw what looked like a gun, even if they cannot identify the
type or caliber, will suffice.†(
“If the weapon cannot be found, the jury may … draw an inference from
the circumstances surrounding the robbery that the gun was [real]. Testimony to the effect that the defendant
was flourishing the [gun] or pointing it at the victim and was using
threatening words or conduct indicating that he intended to fire it if his
demands were not met would be evidence from which the inference could be
drawn.†(Id. at p. 533.)
The possibility that Thrower’s gun was a replica hardly
aids his appeal since we are required to indulge every reasonable inference the
trier of fact could have drawn from the evidence. (People
v. Mendez (2010) 188 Cal.App.4th 47, 56.)
Such inferences can be drawn from Thrower’s efforts to prevent the store
employee from detaining him; he pointed the gun at his chest as if he intended
to fire it if Mr. Barnier did not “back the fuck up.†(See Aranda,
supra, 63 Cal.2d at p. 533.) Thrower also disposed of the weapon prior to
his encounter with police, which is arguably indicative of the gun’s
authenticity. Thus, while the circumstantial
evidence may have been open to different interpretations, there was substantial
evidence to support the interpretation chosen by the jury, i.e., that the
object displayed was a firearm. (
792-793 [“‘Although it is the duty of the jury to acquit a defendant if it
finds that circumstantial evidence is susceptible of two interpretations, . . .
it is the jury, not the appellate court[,] which must be convinced of the
defendant’s guilt beyond a reasonable doubt’â€].)
Furthermore, the position advanced by Thrower is not
novel. Similar arguments have been
considered and rejected by the courts of this state on numerous occasions. In 2008, the Third District published its
opinion in People v. Monjaras,
of such contentions on appeal and “to say in no uncertain terms that a moribund
claim like that raised by [the appellant] has breathed its last breath.†(Monjaras,
supra, 164 Cal.App.4th at p. 1435.)
The Monjaras defendant
accosted a woman in a parking lot and demanded she give him her purse. He then pulled up his shirt and displayed the
handle of a pistol tucked into his waistband.
A jury convicted the defendant of robbery and returned a true finding on
a firearm enhancement under section
12022.53. (Monjaras, supra, 164
Cal.App.4th at p. 1434.) The defendant
appealed, “[p]ointing out that the victim could not say whether the pistol in
[his] waistband was a gun or a toy, and making the dubious assertion that he
‘did not undertake any behavior suggesting that he would fire the
weapon.’†(Id. at p. 1435.) The
defendant likewise argued that the firearm enhancement “was sustained merely on
conjecture about the nature of the alleged weapon.†(Ibid.)
In rejecting the defendant’s arguments, the appellate
court noted that “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; and in any event, victims often lack
expertise to tell whether it is a real firearm or an imitation.†(Monjaras,
supra, at p. 1436.) The holding of the case is summarized in its
final paragraph: “[W]hen as here a defendant commits a robbery by displaying an
object that looks like a gun, the object’s appearance and the defendant’s
conduct and words in using it may constitute sufficient circumstantial evidence
to support a finding that it was a firearm within the meaning of section
12022.53, subdivision (b). In other
words, the victim’s inability to say conclusively that the gun was real … does
not create a reasonable doubt, as a matter of law, that the gun was a
firearm.†(Id. at pp. 1437-1438, fn. omitted.)
Thrower devotes thirteen pages of his opening brief to arguments
challenging the sufficiency of the evidence before finally acknowledging that
discussion in which he contends Monjaras
was wrongly decided and asks us to fashion a new standard of proof for firearm
enhancements. We decline the invitation.
The Monjaras
opinion rests upon the sound policy that criminals should not benefit from
their own destruction or concealment of evidence. Its holding is applicable in cases where a defendant
has impeded the prosecution’s ability to present relevant evidence by hiding,
destroying or otherwise disposing of an object used during the commission of a
crime. (See Monjaras, supra, at p. 1436 [noting “the object itself is usually
not recovered by investigating officersâ€].)
Here, Thrower discarded his gun while the police were in hot
pursuit. If the gun was a fake, he would
have been better served by retaining it.
Thrower chose to eliminate the evidence, thereby accepting the risk of a
firearm enhancement based upon the testimony of his victim and other
eyewitnesses. Their testimony,
considered in the context of the surrounding circumstances, constitutes
substantial evidence in support of the jury’s verdict.
No Basis for Reversal on Grounds of Prosecutorial Misconduct
It is prosecutorial misconduct to misstate the applicable
law during argument to the jury. (
253, fn. 21; People v. Otero (2012)
210 Cal.App.4th 865, 870.) Thrower
contends misconduct occurred during the rebuttal portion of closing argument
when certain testimony was characterized as direct evidence rather than
circumstantial evidence. The prosecution
stated, in pertinent part: “It’s important to know that there was direct
evidence that a firearm was used because two eyewitnesses saw the firearm being
used. That’s direct evidence. They didn’t see bullets on the ground
afterwards. They saw the firearm
itself. That’s direct evidence … that
it’s a firearm.â€
Defense counsel objected on grounds the prosecution had
misstated the law. The trial court
overruled the objection without comment.
On appeal, Thrower claims “[b]y telling the jury that the circumstantial
evidence instruction did not apply to the firearm enhancement, the prosecution
lowered its burden of proof and deprived [him] of his Fourteenth Amendment due
process right to a fair trial as to the firearm enhancements.â€
Thrower’s arguments are based on an academic
distinction. “When an inference needs to
be drawn from the evidence to prove a fact, we call this circumstantial
evidence as opposed to direct evidence. Thus, direct evidence is evidence ‘that
directly proves a fact, without an inference or presumption, and which in
itself, if true, conclusively establishes that fact.†(Ajaxo,
Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 50, quoting Evid.
Code, § 410.)
The eyewitness testimony of Mr. Barnier and Ms. Garcia
satisfies the definition of direct evidence with respect to Thrower’s use of
the object he displayed during the robbery.
However, according to the analysis in Monjaras, the same testimony is considered circumstantial evidence
as to the question of whether the object was a firearm as opposed to a
replica. (Monjaras, supra, 164
Cal.App.4th at pp. 1435-1436.) We need
not address the issue further because a reversal is unwarranted unless the
alleged prosecutorial misconduct was prejudicial, i.e., unless it is reasonably
probable the jury would have reached a result more favorable to Thrower if the
misconduct had not occurred. (
v. Partida (2005) 37 Cal.4th
428, 439.)
The required showing cannot be made.
The trial court orally instructed the jury prior to
closing arguments. The instructions
recited the language of CALCRIM Nos. 220, 223, and 224 with regard to the
concept of reasonable doubt; the definitions of direct and circumstantial
evidence; and application of those principles to the matters at issue. The court admonished the jury with the
following language from CALCRIM No. 200: “You must follow the law as I explain
it to you even if you disagree with it.
If you believe that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions.â€
The jury received the same instructions and admonishment in written form
at the conclusion of closing arguments.
Insofar as the prosecution’s arguments misstated the
definitions of direct and circumstantial evidence, or the applicability of
those concepts to the issues in dispute, the trial court provided the jury with
correct statements of the law in its instructions. The jury was further told to defer to the
trial court’s instructions over any conflicting statements by counsel. Although Thrower complains that the court
improperly overruled defense counsel’s objection, ruling on an objection is not
synonymous with giving an instruction.
The former is materially different from the latter.
Jurors are presumed to be intelligent persons “capable of understanding
and correlating all jury instructions which are given.†(People
v. Martin (2000) 78 Cal.App.4th 1107, 1111, internal quotations
omitted.) In the absence of an
affirmative showing to the contrary, which Thrower has failed to make, we must
presume the jury followed the trial court’s instructions and disregarded any
incorrect statements of law by counsel that conflicted with those
instructions. (Ibid; see also, Weeks v.
Angelone (2000) 528 U.S. 225, 234 [“A jury is presumed to follow its
instructions.â€].) This leads us to
conclude that no prejudicial error occurred.
Even if we were to disregard these presumptions, it is an untenable
leap of reasoning for Thrower to argue the burden of proof was somehow
“lowered†with regard to the firearm enhancement allegations. Regardless of how the evidence was
characterized, the instructions conveyed the need to establish each element
beyond a reasonable doubt. (See
696 [“[W]e consider the instructions as a whole to determine whether there is a
reasonable likelihood the jury was misled.â€].)
This included CALCRIM No. 3146, which is tailored to sections 12022.5
and 12022.53, and identifies reasonable doubt as the applicable burden of
proof. The prosecution’s attempt to
differentiate between direct and circumstantial evidence did not undermine the
reasonable doubt standard. (See
1145, 1166.)
For the reasons stated above, we find no basis for reversal on grounds
of prosecutorial misconduct. If
misconduct occurred by way of a misstatement of law during
occur as a result.
DISPOSITION
The judgment is affirmed.
_____________________
Gomes, Acting P.J.
WE CONCUR:
_____________________
Poochigian, J.
_____________________
Detjen, J.
unless otherwise indicated.
