P. v. Jordan

Filed 4/17/06 P. v. Jordan CA4/1

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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, David M. Gill, Judge. Affirmed.

A jury convicted Lawrence W. Jordan of eight counts of second degree robbery (Pen. Code, § 211 ^[1]; counts 1-3, 5-9) and found true that he personally used a firearm in the commission of count 1. (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b).)

The court sentenced Jordan to the middle term of three years for count 1; ten years for the firearm enhancement (§12022.53, subd. (b)); and, consecutive one-year terms for the other seven robbery convictions, for a total of twenty years in prison. Jordan contends the trial court erred when it: (1) denied his motion to dismiss the firearm use allegation under section 1118.1, because insufficient evidence supported the firearm enhancement; (2) sentenced him consecutively for the robbery convictions. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

We discuss in detail the facts regarding count one, but not the others, because Jordan challenges only the gun enhancement regarding that count.

On November 22, 2003, at approximately 4:20 a.m., Jordan wore a hood, a Halloween mask and gloves, and carried a rifle into Mercury Adult Bookstore in San Diego County. He walked towards the cashier, David Sada. At the same time, Jordan's accomplice, who previously was reading magazines in the store, also walked towards the cashier. Jordan handed the accomplice the rifle in front of Sada. Jordan ordered Sada to "give up the money." Sada feared they would kill him. He handed them approximately $600 from the cash register plus the keys to the back room where additional money was kept in a drop box. The robbers took approximately $1200. A surveillance video captured the above-described incidents.^[2]

DISCUSSION

I.

Jordan contends insufficient evidence supported the gun enhancement because he "did not intentionally display the weapon in a menacing manner." We disagree. Whether a defendant used a firearm within the meaning of section 12022.5 is a question of fact for the jury. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.)

The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (Id. at p. 578.) We must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) We do not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (In re Frederick G. (1979) 96 Cal.App.3d 353, 367.)

The jury was instructed in the language of CALJIC No. 17.19 as follows: "The term 'personally used a firearm,' as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner." At trial, the jury watched the surveillance video that recorded Jordan's conduct and demeanor in the store as he handed the rifle to his accomplice. The jury necessarily concluded Jordan displayed the rifle menacingly, or it could not have convicted him under the instructions given.

Jordan relies on a distinguishable case for his contention his "display of the weapon was passive." (People v. Hays (1983) 147 Cal.App.3d 534, 548.) In Hays, the defendant came crashing through an office ceiling with a gun slung over his shoulder and in so doing scared away the office occupant. (Id. at p. 539.) The Hays court concluded the defendant did not use a firearm within the meaning of section 12022.5 because he did not shoot or strike anyone with the rifle nor did he threaten to do so. (People v. Hays, supra, 147 Cal.App.3d at pp. 548-549.)

We agree with this explanation of the holding in Hays: "[A] finding of weapon use is precluded if the defendant's conduct with respect to weapon appears to be purely incidental to the crime. In Hays the evidence was insufficient because, even though the gun was exposed to the victim's view, the exposure was not an act in furtherance of the crime, but a mere incident of possession. . . . [¶] . . . In our view, if the defendant is found on substantial evidence to have displayed a firearm in order to facilitate the commission of an underlying crime, a use of the gun has occurred both as a matter of plain English and of carrying out the intent of section 12022.5(a). Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure." (People v. Granado (1996) 49 Cal.App.4th 317, 324-325.)

The jury by its verdict believed that when Jordan carried a rifle into an adult bookstore in an urban setting at 4:20 a.m. and immediately handed it to his accomplice, he engaged in "a deliberate display, intended to convey menace, for the purpose of advancing the commission of the offense." (Id. at p. 325.) On this record, we have no basis for second-guessing the jury.

II.

The trial court did not err in sentencing Jordan consecutively for the robbery convictions, notwithstanding his claims he committed them in "a single period of aberrant behavior and the circumstances in mitigation outweighed the circumstances in aggravation." The claim is waived because Jordan did not object to the sentence in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 351-356.)

The claim fails on the merits because Jordan did not commit the robberies so closely in time and place as to constitute a "single period of aberrant behavior." (California Rules of Court, Rule 425 [outlining criteria for imposition of consecutive sentences].) Jordan robbed different victims at eight different stores in different parts of the county over a seven-week period. Accordingly, the trial court did not abuse its discretion in sentencing Jordan consecutively.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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^[1] All further statutory references are to the Penal Code.

^[2] Jordan had worked as a cashier for five years at an adult bookstore approximately four years prior to the robberies. He and his accomplice used the same modus operandi when they robbed seven other adult bookstores between December 8, 2003 and January 7, 2004. Jordan usually wore a mask, and one of them used a plastic gun to force the cashiers to turn over the money in the registers. They robbed the following approximate sums from their victims: $2000 from John Taber (count 2); $235 from David Valenzuela (count 3); $212 from Nicholle Jacobi (count 5); ; $230 from Calla Arslanian (count 6); $700 from Brian Pinkey (count 7) $150 from Giovanni McQueeny (count 8); and $200 from Joseph Austin (count 9). The robberies were captured on surveillance videos.

After Jordan's arrest, he confessed to the police his involvement in the crimes, including his visits to case some of the stores days before the robberies. The robbers selected the specific hours when they knew fewer people were at the stores. Jordan also confessed he "[had] been broke lately and . . . was doing crystal." Jordan was positively identified by several victims, including Joseph Austin, who had been his friend and coworker.