P. v. Salgado

Filed 8/21/07 P. v. Salgado CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed.

A jury convicted Eliseo Salgado of robbery (Pen. Code,  211)^[1]and found that he personally used a firearm in the commission of the offense ( 12022.5, subd. (a), 12022.53, subd. (b)). The trial court sentenced Salgado to 13 years in prison: three years for robbery with a 10‑year enhancement under section 12022.53, subdivision (b) for use of a firearm.

Salgado appeals, contending that the firearm enhancement must be stricken because: (i) a firearm use enhancement cannot apply if, as in Salgado's case, the use of the firearm itself transforms the offense from a petty theft (to which the enhancement is not applicable) to a robbery; and (ii) the evidence was insufficient to support the jury's finding that he used a firearm. Salgado also contends that his robbery conviction must be reversed because: (i) there was insufficient evidence to support the jury's finding that he was the perpetrator of the robbery; and (ii) the photographic array that the police showed to the eyewitnesses was unduly suggestive. As discussed below, we find no merit to these contentions.

I

FACTS

On May 20, 2005, Clinton Keeton and Brian Encabo were working as loss prevention officers at Chick's Sporting Goods in Oceanside. At around 3:30 p.m., Keeton and Encabo saw Salgado enter the store through a closed circuit surveillance camera. They observed Salgado, who was wearing a white T‑shirt with the words "SD jail" on the back, take a pair of baseball batting gloves valued at $18.99, stuff them in his back pocket and walk out of the store.

Keeton, who was wearing a shirt labeled "Chick's Sporting Goods," pursued Salgado and was in turn followed by three or four other store employees. As the employees exited the store in pursuit of Salgado, Salgado turned around, looked at Keeton who was ahead of the other employees, "pulled a gun out of his right pocket" and pointed it at Keeton. Seeing the gun, Keeton broke off the pursuit because "my life is not worth a pair of batting gloves" and told the other employees to stay back because Salgado had a gun. Salgado put the gun back in his pocket and fled the area.

Oceanside Police Officer John Clark responded to the theft at the sporting goods store and interviewed the witnesses. After reviewing the store videotape, which recorded the theft, he contacted Salgado who lived about half a mile from the store. Officer Clark took a photograph of Salgado that was then placed in a photographic lineup of six persons and presented to Keeton and Encabo. Keeton and Encabo both identified the photograph of Salgado as depicting the person who committed the robbery. Keeton and Encabo repeated their identifications of Salgado in court. In support of his identification, Keeton stated he "got a real good look" at Salgado during the robbery that left "a very good picture of his face in my mind."

II

DISCUSSION

A. The Section 12022.53 Firearm Use Enhancement Was Lawfully Imposed

Salgado contends that the firearm use enhancement under section 12022.53 could not lawfully be imposed for his offense. We disagree.

The question of whether a statutory enhancement is properly applied is a question of legislative intent. (People v. Chambers (1972) 7 Cal.3d 666, 671 (Chambers).) In attempting to discern legislative intent, we "look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning." (People v. Garcia (2002) 28 Cal.4th 1166, 1172 (Garcia).) "If there is no ambiguity in the statutory language, its plain meaning controls," and "we presume the Legislature meant what it said." (Ibid.)

Section 12022.53, subdivision (b) states: "Notwithstanding any other provision of law, any person who, in the commission of" certain specified felonies, including robbery, "personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years." (See  12022.53, subd. (a).) Salgado contends that this statute does not apply in the instant case because he had not committed a qualifying offense (robbery, i.e., a taking by "force or fear") under section 12022.53 until he used the firearm.^[2] He argues that for the enhancement to apply there must first "exist a qualifying underlying conviction or offense which occurred and was completed before the display of the weapon."

Salgado's contention is refuted by the statutory text itself. The text of section 12022.53 simply does not require that an underlying offense be completed prior to the use of a firearm for the enhancement to apply. Rather, it unambiguously states that the enhancement applies if "in the commission of a" robbery, a defendant "personally uses a firearm." ( 12022.53, subd. (b); cf. Chambers, supra, 7 Cal.3d at p. 671 [holding that defendant convicted of armed robbery is subject to a firearm use enhancement even though use of firearm was essential to proving armed robbery].)^[3] As Salgado used a firearm in the commission of a robbery in the instant case, the enhancement applies, and there was no error in its application to enhance Salgado's sentence. (Chambers, at p. 674 ["Where . . . legislative intent is clearly expressed on the face of a statute its meaning cannot be challenged"]; Garcia, supra, 28 Cal.4th at p. 1172 [statutory text governs if it is unambiguous].)

B. There Is Sufficient Evidence to Support the Jury's Verdict

Salgado contends that the evidence is not sufficient to support the jury's determination that he used a firearm in the commission of the robbery or that he was the perpetrator of the robbery. We review these contentions, after setting forth the applicable standard of review.

1. Standard of Review

Our role in reviewing a challenge to the sufficiency of evidence is a limited one. "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence  that is, evidence that is reasonable, credible and of solid value  from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66 (Snow).) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)

In performing our review of the record, we are further limited by the fact that it " ' "is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (People v. Smith (2005) 37 Cal.4th 733, 739.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Consequently, even the "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296 (Scott).)

2. The Evidence Was Sufficient to Support the Jury's Finding that Salgado Used a Firearm

Salgado contends that the evidence was insufficient to support the jury's firearm use finding because "no weapon was ever recovered and there existed no testimony of appellant's possession of any weapon" apart from that of one witness, Keeton, who acknowledged that he could not be certain the object was a real gun. We disagree.

The "uncorroborated testimony of a single witness is sufficient" to sustain a jury finding "unless the testimony is physically impossible or inherently improbable." (Scott, supra, 21 Cal.3d at p. 296.) Here, Keeton testified that as he approached Salgado, Salgado "pulled a gun out of his right pocket" and pointed it directly at him. Keeton "saw mainly the barrel and the slide" of the gun and was able to discern "that it was not a revolver" but rather "a magazine-fit pistol." Keeton also explained that he had extensive knowledge of guns because he had received "80 hours of training through Palomar College Police Academy in firearms." There was nothing physically impossible or inherently improbable about Keeton's testimony that Salgado had a gun and, consequently, that testimony constitutes sufficient substantial evidence to support the jury's finding.

Salgado emphasizes that on cross-examination, Keeton admitted he was "not sure" it was a gun and did not know "whether or not it was a real gun." Viewing this testimony in the light most favorable to the judgment (Snow, supra, 30 Cal.4th at p. 66), however, it is clear that Keeton was not recanting his direct examination testimony that Salgado had a gun, but simply acknowledging, as he had stated earlier, that some "replicas . . . look very, very real" and are "real hard to distinguish" from actual guns. Thus, while he was sure he saw a "gun-looking object" in Salgado's hand, he could not rule out the possibility that it was a sophisticated replica that simply appeared to be a real gun. (People v.Rayford (1994) 9 Cal.4th 1, 23 (Rayford) [appellate court must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence" ' "].) Consequently, Keeton's cross-examination testimony did not significantly undermine his direct examination testimony that Salgado had a gun, and the jury was entitled to rely on Keeton's testimony as sufficient proof of that fact.

To the extent Salgado contends that the jury's finding must be reversed because there was no evidence that the gun Keeton saw was a "firearm" as opposed to a replica or toy gun, we also reject that contention.^[4]

"The character of [a] weapon may be shown by circumstantial evidence," such as "testimonial descriptions of the weapon and its role in the commission of the crime." (People v. Hayden (1973) 30 Cal.App.3d 446, 451-452 (Hayden), reversed on other grounds in People v. Rist (1976) 16 Cal.3d 211; People v. Green (1985) 166 Cal.App.3d 514, 517.) Here, Keeton, who testified to extensive knowledge of firearms, saw the weapon from a short distance away and described it as a dark silver, Beretta, "magazine-fit pistol" based on the "rounded shape of the barrel and the slide." Keeton saw no indication that the weapon was a toy gun or replica, and there was no evidence introduced that would support such a conclusion. The inference that the weapon was, in fact, a "firearm" was corroborated by the unobjected-to testimony of Officer Clark that Keeton told him that "he knew what guns looked like, and he believed that the gun was real." Further, a reasonable inference that the item was a real gun was supported by the fact that Salgado brought it to the store for use in a theft and used it to deter Keeton from apprehending him, pointing it directly at Keeton as if it were a real gun. (Hayden, at p. 452 [jury can draw inference regarding nature of weapon from its "role in the commission of the crime"]; cf. Rayford, supra, 9 Cal.4th at p. 23 [appellate court must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence" ' "].) Thus, while the circumstantial evidence was " ' "susceptible of two interpretations," ' " there was sufficient substantial evidence to support the interpretation chosen  that the weapon Keeton saw was a "firearm." (Snow, supra, 30 Cal.4th at p. 66 [while " ' "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" ' "]; cf. People v. Dominguez (1995) 38 Cal.App.4th 410, 422 [evidence that defendant made threat to " 'kill' " the victim and victim felt "sensation of the cold steel cylindrical object" constituted "sufficient evidence to support a jury finding of the use of a firearm"].)

3. The Evidence Was Sufficient to Support the Jury's Finding that Salgado Was the Perpetrator

Salgado contends that the evidence is not sufficient to support the jury's determination that he was the perpetrator of the robbery. Specifically, he argues that the court should review the photographic evidence in the case for itself because that evidence "raise[s] serious doubts as to whether [Salgado] was in fact the perpetrator of the offense," as it shows that "the person depicted in the store video is not" Salgado. We disagree that reversal is warranted on this ground.

Salgado's repeated contention that "this court's review of the photographic evidence w[ill] lead to the inescapable conclusion the person depicted in the store video is not [Salgado]" misunderstands the role of this court. We do not sit as a second jury, reviewing the evidence presented at trial to determine whether we agree with the conclusion reached by the jurors. (Snow, supra, 30 Cal.4th at p. 66 [" ' "it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt" ' "].) Rather, our role is simply to ascertain whether there was "substantial evidence . . . from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Ibid., italics added.) In performing this function, we must defer to the jury's role as factfinder, deference encapsulated in the rule that the "uncorroborated testimony of a single witness is sufficient" to sustain a jury finding "unless the testimony is physically impossible or inherently improbable." (Scott, supra, 21 Cal.3d at p. 296.) Here, two witnesses identified Salgado as the perpetrator of the offense and, as they observed Salgado during the robbery, nothing about their testimony is physically impossible or inherently improbable. In addition, the jury was presented with the videotape from the store surveillance cameras as well as still photographs taken from that videotape, and was able to evaluate for itself whether the photographic evidence comported with Salgado's appearance.^[5] To rebut the prosecution's evidence, the defense put on an expert witness who testified at length about factors that call into question the reliability of eyewitness identifications. In light of this evidence, the ultimate question of whether Salgado was the perpetrator was for the jury. As substantial evidence supports the jury's conclusion, we have no authority to overturn it on appeal. (Scott, supra, 21 Cal.3d at p. 296.)

C. Salgado Has Not Met His Burden of Demonstrating that the Photographic Array Was Improperly Suggestive

Salgado contends that the photographic array shown to the two eyewitnesses was "unduly suggestive and patently unfair" because his "photo was the only one remotely

resembling the person depicted in the store video."^[6] Salgado argues the use of the array tainted the in-court eyewitness identifications, violating his constitutional rights. We disagree.

To prevail on a claim that a photographic array was improperly suggestive, Salgado "bears the burden of demonstrating the existence of an unreliable identification procedure," and specifically, to establish that some aspect of the identification procedure " 'caused [the] defendant to "stand out" from the others in a way that would suggest the witness should select him.' " (Cunningham, supra, 25 Cal.4th at pp. 989-990.) We independently review the photographic lineup and identification procedures utilized to determine whether they were improperly suggestive. (Ibid.)^[7]

Here, the only factor that Salgado relies on to demonstrate unreliability is his assertion that the persons pictured in the lineup (exhibit 6) did not resemble the person in the surveillance videotape. In fact, the photographic lineup depicts six male individuals of approximately the same age, with substantially similar physical characteristics as the person in the videotape, including short hair and mustaches. The photograph of Salgado is "similar to that of the others" presented, and each of them, to varying degrees, resemble the person in the surveillance videotape. (Cunningham, supra, 25 Cal.4th at p. 990 [rejecting claim that lineup was improperly suggestive where court independently examined lineup and concluded that defendant's "photograph was similar to that of the others"].) We see nothing in the photographic lineup or the procedures utilized in presenting that lineup to the witnesses^[8]that would cause the picture of Salgado " 'to "stand out" from the others in a way that would suggest the witness should select him.' " (Cunningham, supra, 25 Cal.4th at p. 990.) Consequently, Salgado has not carried his burden of demonstrating that the lineup was unduly suggestive, and thus there was no error in the admission of the trial testimony of the witnesses identifying Salgado.

DISPOSITION

Affirmed.

IRION, J.

WE CONCUR:

McDONALD, Acting P. J.

McINTYRE, J.

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^[1] All statutory references are to the Penal Code unless otherwise indicated.

^[2] Robbery is "the felonious taking of personal property . . . of another, from his person or immediate presence . . . accomplished by means of force or fear." ( 211.) The instant case is an example of a so-called "Estes robbery," where an initial peaceful taking of the property is followed by a later application of force. (See People v. Estes (1983) 147 Cal.App.3d 23.) The exact contours of a legally sufficientEstes robbery is a subject of some dispute (see Miller v. Superior Court (2004) 115 Cal.App.4th 216, 224; id., at p. 225 (dis. opn. of McDonald, J.)), and the issue is currently pending before our Supreme Court. (See People v. Gomez (2005) 134 Cal.App.4th 1241, review granted Mar. 22, 2006, S140612; People v. Johnson (2006) 141 Cal.App.4th 1161, review granted Nov. 15, 2006, S146207.)

As the issue is raised only obliquely, if at all, in the instant appeal, we simply note that because Keeton observed Salgado's theft in real time while a short distance away and while otherwise in control of store property, only the force element of the robbery was lacking at the time of the initial taking. (People v. Hayes (1990) 52 Cal.3d 577, 627 [items in immediate presence include those " ' "within [victim's] reach, inspection, observation or control" ' " such " ' "that he could, if not overcome by violence or prevented by fear, retain his possession of it" ' "; and includes " ' "an area within which the victim could reasonably be expected to exercise some physical control over [her] property" ' " (italics added)].) Our Supreme Court has already stated that the force element can be supplied during the asportation of stolen property, and thus we would reject under existing law any contention that no robbery occurred, even if the claim were properly raised in this appeal. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 ["to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear" (italics added)].)

^[3] Salgado's reliance on Garcia, supra, 28 Cal.4th 1166 at pp. 1173-1174, which states that a conviction is "a procedural prerequisite" to application of the firearm use enhancement, is unavailing. First, Garcia interpreted a previous version of section 12022.53, which stated that the enhancement applied to a defendant " 'convicted' " of an enumerated felony language that is not present in the version of the statute applicable here. (Ibid.) Second, while Garcia holds that a conviction is "a procedural prerequisite" to imposition of the enhancement, its holding is a statement of procedure, not substance: a defendant is not subject to the enhancement unless he is first convicted of an applicable underlying offense. (Ibid.) Here, of course, this procedural requirement was satisfied by the robbery conviction, which preceded imposition of the enhancement.

^[4] Section 12001, subdivision (b) defines a " 'firearm' " as "any device, designed to be used as a weapon, from which is expelled through the barrel, a projectile by the force of any explosion or other form of combustion." Use of a replica or toy gun not meeting this definition would not trigger the enhancement. (People v. Jackson (1979) 92 Cal.App.3d 899, 903, fn. 7.) Section 12022.53, subdivision (b) states: "The firearm need not be operable or loaded for this enhancement to apply."

^[5] We have reviewed the photographic evidence and while it is not possible to discern from that evidence alone whether the person depicted in the store surveillance videotape is (or is not) Salgado, the jury had additional information from which to draw this conclusion, namely, the testimony of two eyewitnesses who identified Salgado at trial, and explained that the live video they saw during the robbery was "a lot different" and "much clearer than the still[]" photographs and stop-action video presented to the jury. Further, one of those witnesses, Keeton, was also able to view Salgado face-to-face outside the store, and he testified that his ability to see the perpetrator during the robbery left him with "a very good picture of his face in my mind." Thus there was substantial evidence to support the jury's verdict even if, as Salgado contends, he could not have been identified as the perpetrator solely from the photographic evidence.

^[6] Salgado's counsel's failure to raise this contention below constitutes a forfeiture of this claim. (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).) Nevertheless, we address the claim because Salgado argues that his counsel's failure to preserve it constitutes ineffective assistance of counsel.

^[7] The Supreme Court has not definitively stated the requisite standard of review, but has repeatedly recognized that independent review is appropriate. (Cunningham, supra, 25 Cal.4th at p. 989; People v. Carpenter (1997) 15 Cal.4th 312, 367.) As there is, in fact, no trial court ruling to defer to in the instant case, independent review is particularly appropriate here, and neither party contends otherwise.

^[8] The detective who presented the lineup to the eyewitnesses stated that he first gave each witness a form admonishment, which states: "You will be asked to look at several photographs. The fact that the photographs are shown to you should not influence your judgment. You should not conclude or guess that the photographs contain the picture of the person who committed the crime. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties."