P. v. Hernandez

Filed 8/21/07 P. v. Hernandez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Christopher Hernandez challenges his second degree robbery conviction on the ground the trial court improperly admitted evidence regarding a gun he was carrying when he was arrested. We conclude evidence of the gun was properly admitted because the gun could have been the one used in committing the robbery.

BACKGROUND AND PROCEDURAL HISTORY

Appellant and a companion approached Jose Alvarado, Jr. as he was handing money to another man. Alvarado had seen appellant around the neighborhood on prior occasions and knew people called him Chris. Appellant partially withdrew a gun from the waistband of his trousers and demanded the money. Appellant took the money Alvarado had in his hand, and appellants companion went behind Alvarado and removed money from Alvarados back pocket.

A jury convicted appellant of second degree robbery and found he personally used a gun in the commission of the offense. The court sentenced appellant to 13 years in prison.

DISCUSSION

Appellant contends the trial court erred by admitting a gun recovered from him at the time of his arrest. He argues the gun was irrelevant because it was not the weapon used in robbing Alvarado, and the risk of undue prejudice from its admission outweighed its probative value because it allowed the jury to infer appellant was predisposed to commit violent crimes.

Generally, we review any ruling on the admissibility of evidence for abuse of discretion. (See, e.g., Peoplev.Alvarez (1996) 14 Cal.4th 155, 201.) This standard of review applies to both a trial courts determination of the relevance of evidence and its determination under Evidence Code section 352 whether the evidences probative value is substantially outweighed by its prejudicial effect. (Peoplev.Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Evidence that a defendant possessed a weapon not used in the charged crime or not shown to have some arguable relevance to the case is inadmissible. (People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393; People v. Henderson (1976) 58 Cal.App.3d 349, 360.) But a defendants possession of a weapon that could have been used in the commission of the crime is relevant and admissible evidence. (People v. Cox (2003) 30 Cal.4th 916, 955-957.)

The gun introduced at trial (Peoples Exhibit 1) was recovered from appellant by Officer Tarek Ismail 12 days after the robbery of Alvarado. Ismail testified the gun was loaded and was recovered from the front waistband of appellants trousers.

Before trial, appellant sought to exclude the gun and related testimony on the grounds it was irrelevant, was inadmissible under Evidence Code section 1101, and should be excluded under Evidence Code section 352. At a hearing to determine the admissibility of the evidence, Alvarado testified appellant held the gun with his right hand and did not fully remove it from his trouser waistband. The prosecutor simulated the manner in which Alvarado said appellant held the gun and stood approximately the same distance from Alvarado as appellant had stood at the time of the robbery. Under those simulated conditions, Alvarado testified the gun held by the prosecutor could be the gun used in the robbery. Alvarado recalled testifying at the preliminary hearing that the gun was gray and had a chrome chamber. The gun held by counsel was not a chrome gun but, according to Alvarado, it had a chrome chamber. It looked shiny and reflected light, and would look different in sunlight. The bailiff informed the court that the portion of the gun in question was the ejection port. When asked to compare the gun held by counsel to the one in Officer Ismails holster, Alvarado said Ismails gun was black and the other gun was dark gray.

At trial, Alvarado testified that the robbery occurred in the afternoon. Appellant never fully withdrew the gun from the waistband of his trousers. He grasped the gun by the handle and lifted it part way from his waistband. There were no differences between Peoples Exhibit 1 and the gun appellant had when he robbed Alvarado. Peoples Exhibit 1 appeared to be the same gun. However, Alvarado recalled testifying at the preliminary hearing that the gun was a gray, semi-automatic that had a chrome chamber. The gun in Peoples Exhibit 1 was very similar in color to Alvarados black shirt.

Officer Jeff Mitchell, who responded to Alvarados robbery call, testified that Alvarado said the robber had pointed a gray gun at him. Mitchell asked Alvarado whether the gun was a semiautomatic like Mitchells or a revolver. Alvarado said it was like Mitchells, but he did not mention the chrome chamber.

The only potential discrepancy between the gun used in the robbery and Peoples Exhibit 1 was the color. Both were apparently semi-automatics of the same size, and both had what Alvarado described as a chrome chamber. The difference in color description was slight and could have resulted from the difference between daylight and artificial lighting, relative color comparisons, and Alvarados subjective choice of words. In this regard, it is noteworthy that Alvarado did not see the entire gun, as appellant never completely removed it from his trousers. Moreover, Alvarado testified appellant wore black trousers, which may have been darker than the gun and caused Alvarado to think of the gun as gray, not black. Had he described the gun used in the robbery as all chrome or testified that Peoples Exhibit 1 did not appear to be the gun used in the robbery, appellants argument would have more merit. Given the testimony, however, Peoples Exhibit 1 could have been the gun used in the robbery. It was therefore relevant and admissible to corroborate Alvarados testimony and prove the gun-use enhancement allegation. It was evidence pertaining to the commission of the charged crime, not evidence of another instance of misconduct implicating Evidence Code section 1101. Given its great probative value, the trial court did not abuse its discretion by admitting it.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

RUBIN, Acting P. J.

FLIER, J.

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