Opinion
C057164
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ARMENDARIZ HERNANDEZ, JR., Defendant and Appellant.
Not to be Published
Defendant Richard Armendariz Hernandez challenges several gun use enhancements and charges of being a felon in possession of a firearm on grounds of insufficiency of the evidence and ineffective assistance of counsel. Finding no merit in his arguments, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 6, 2005, defendant walked out of a Mervyns store wearing a pair of shoes he had been trying on and for which he had not paid. When confronted by a loss prevention officer outside the store, defendant said he had a pistol, pulled what looked to be a gun from his waistband, and pointed it at the officer before making his escape.
About three weeks later, on June 26, 2005, defendant showed up around 1:00 a.m. at the house where he had lived with his former girlfriend until about a week before. When she opened the door, he pushed his way in and became angry when he saw she had purchased new sandals for their children and a new purse for herself. He grabbed the purse, and when she tried to grab it back, he "[p]ulled a gun out" and pointed it at her from a few feet away, telling her to let go. They struggled for a time and he threatened to hurt her, until she finally ran to a nearby house and called the police.
On August 8, 2005, police went to defendants mothers house to arrest him. Upon entering the house, one of the officers found a gun wrapped inside a T-shirt on a kitchen chair and ammunition in the pockets of a pair of jeans found with the shirt. Defendant was later found hiding in the attic.
Based on the Mervyns incident, defendant was charged with robbery and being a felon in possession of a firearm. The information also alleged that defendant personally used a handgun in committing the robbery.
Based on the incident with his former girlfriend, defendant was charged with robbery, making a criminal threat, and being a felon in possession of a firearm. The information also alleged that defendant personally used a handgun in committing the robbery and making the criminal threat.
The information also included a third count of being a felon in possession of a firearm based on the gun discovered at defendants mothers house when he was arrested there. Finally, although not relevant here, defendant was charged with inflicting corporal injury on his former girlfriend for an incident in July 2005, and the information also alleged a prior conviction.
The jury found defendant guilty on all charges and found true the gun use enhancement allegations. The jury also found true the prior conviction allegation. The trial court sentenced defendant to an aggregate term of 20 years 4 months in prison.
DISCUSSION
I
Sufficiency Of The Evidence
"`The standard of review is well settled: On appeal, we 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. [Citations.] "`[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." [Citation.] "The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] `Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt." [Citation.]
"`An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence. [Citation.] `Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact]." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572-1573.)
A
Use Of A Gun During The Robberies
Defendant first challenges the sufficiency of the evidence to support the gun use enhancements and felon in possession charges relating to the incidents involving Mervyns and his former girlfriend. He contends "[t]here was no proof that the gun which [he] allegedly brandished during either robbery was in fact a `firearm under California law" because in each instance the gun might have been a toy. We are not persuaded.
This court recently dispensed with a similar argument in People v. Monjaras (2008) 164 Cal.App.4th 1432. There, the defendant confronted a woman "late at night in the lighted parking lot of an apartment complex," told her, "`Bitch, give me your purse," and "pulled up his shirt and displayed the handle of a black pistol tucked in his waistband." (Id. at p. 1434.) On appeal, this court concluded the evidence was sufficient to "support[] a reasonable inference that the pistol he used was a real firearm, not a toy" and indeed went so far as to say that "a moribund claim like that raised by defendant has breathed its last breath." (Id. at p. 1435.) The court explained that "[c]ircumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm." (Id. at p. 1436.) For example, a "`defendants own words and conduct in the course of an offense may support a rational fact finders determination that he used a [firearm]." (Id. at pp. 1436-1437.) "Simply stated, when as here a defendant commits a robbery by displaying an object that looks like a gun, the objects appearance and the defendants conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm . . . . In other words, the victims inability to say conclusively that the gun was real and not a toy does not create reasonable doubt, as a matter of law, that the gun was a firearm." (Id. at p. 1437.)
Here, with regard to the Mervyns robbery, the evidence showed that when the store loss prevention officer (who had had "a little" experience with guns "in the Boy Scouts") attempted to take defendant into custody for shoplifting, defendant said, "`I have a pistol," reached into his waistband, pulled out "what looked to be a gun," and pointed it at the officers chest from a foot and one-half away. Like the evidence in Monjara, this evidence was sufficient to support a reasonable inference that the pistol defendant used was real, not a toy.
The same can be said of defendants robbery of his former girlfriend. With regard to that incident, the evidence showed that when she tried to grab her new purse back from defendant, he "[p]ulled a gun out" and pointed it at her from a few feet away, telling her to let go of the purse. This evidence, too, was sufficient to support a reasonable inference that defendant had a real gun, not a toy. It is true that later defendant showed her a toy gun and told her it was the gun he had used when he took her purse, and it looked to her "like it was the same gun." The jury, however, was under no obligation to believe defendants self-serving assertion to his former girlfriend, and thus this evidence did not, as a matter of law, undercut the circumstantial evidence from the incident itself based on which the jury was entitled to find that defendant used a real gun, rather than a toy.
B
Possession Of The Gun Found When Defendant Was Arrested
Defendant next argues the evidence was insufficient to support his felon in possession conviction based on the gun found when he was arrested because there was no "sufficient nexus" between defendant and the gun. We disagree.
The evidence showed that the police went to defendants mothers house to arrest him. While somebody acknowledged the presence of the officers within about 30 seconds of their knocking and announcing their presence, it took approximately two minutes for someone to answer the door. Three females came out of the house and told the police there was no one else inside. An officer entered the house with his canine partner. Upon entering the house, the officer saw "what looked to be male clothing" — denim pants and a gray T-shirt — stacked on a kitchen chair. While checking the clothing for a wallet or any identifying information, the officer found a handgun wrapped inside the T-shirt. He also found five rounds of ammunition in the jeans. Defendant was later found hiding in the attic. The officers did not find any other males in the house.
In arguing this evidence was insufficient to prove he possessed the gun, defendant relies on various cases that address an issue entirely different from the simple possession at issue here — specifically, what is necessary to prove a defendant used or was armed with a firearm in connection with another offense. (E.g., Bailey v. United States (1995) 516 U.S. 137 [use of firearm during drug trafficking crime]; People v. Bland (1995) 10 Cal.4th 991 [armed with firearm in commission of a felony].) These cases, and the principles they involve, are inapposite here. The sole question in this case is whether there was sufficient evidence to find defendant possessed the gun found in his mothers home, period.
Because defendant fails to mention a single authority on the law of simple possession, he necessarily fails to carry his burden of proving the evidence offered against him was insufficient to meet the requirements of that law. In any event, we conclude the evidence was sufficient for the jury to draw a reasonable inference that the gun belonged to defendant. The gun was found wrapped in what appeared to be male clothing in a house where defendant was the only male. The jury could have reasonably concluded that defendant inadvertently left the bundle of clothing behind on the kitchen chair in his haste to hide in the attic when the police arrived, and none of the three females in the house made any effort to hide the bundle for him because they did not know what it contained. On this reasoning, the evidence was sufficient to prove simple possession.
II
Ineffective Assistance Of Counsel
Defendant contends his trial attorney was ineffective because he failed to retain a gun expert and because he argued to the jury that the gun found when defendant was arrested could have belonged to defendant. We find no merit in these contentions.
"To show ineffective assistance of counsel, defendant has the burden of proving that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been different." (People v. Kelly (1992) 1 Cal.4th 495, 519-520.) "If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsels performance was deficient." (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008.)
With these governing principles in mind, we turn to defendants arguments.
A
Failure To Retain A Gun Expert
Defendant contends his trial attorney "should have retained a qualified gun expert to testify as an expert witness on the distinctions and similarities between real and imitation guns." He further contends it is reasonably probable he would have obtained a better result at trial if his attorney had done so because "there was no evidence that the guns used in the robberies were firearms."
We find no merit in either aspect of defendants argument. First, defendant does not explain what testimony a gun expert could have given to help his case, other than asserting that such an expert could have testified "on the distinctions and similarities between real and imitation guns." What does that mean? Even assuming a gun expert could have testified generally that some toy guns are difficult to distinguish from real guns, we believe a reasonably competent defense attorney could have decided that such testimony would not materially assist in defendants defense. Keep in mind that a gun expert could not have offered any opinion on whether the actual guns defendant used in the robberies were real or fake. At best, the expert could have offered general testimony not tied to the facts here. Defendant has failed to persuade us that a reasonably competent criminal defense attorney would necessarily have called an expert to offer such testimony.
Second, defendant has not shown prejudice from the absence of any such general expert testimony. Contrary to defendants premise (and as we have explained above), there was evidence the guns used in the robberies were real, not toys. That evidence may have been circumstantial, but it was evidence nonetheless, and defendant has failed to persuade us there is a reasonable probability the jury would have viewed that evidence differently if a gun expert had testified "on the distinctions and similarities between real and imitation guns."
B
Closing Argument
Defendant contends his trial attorney was also ineffective because he "argued against [defendant] by making a veiled admission that the gun [found when defendant was arrested] was [defendants]." But defense counsel did no such thing. What counsel did was argue that there was no proof beyond a reasonable doubt that the gun belonged to defendant, and in the course of this argument he contrasted the reasonable doubt standard with other lesser standards of proof, as follows: "The Government didnt seek to have any fingerprints to try to take off the gun to tie it to [defendant]. So, quite frankly, there really is no proof that [defendant], in fact, possessed that gun. And, in fact, it is also reasonable to infer that, well, perhaps the other people in the house may have hidden that gun there. Yes, he was hiding in the attic. He didnt want to get caught by the police. He knew there were warrants out for him. But is that proof beyond a reasonable doubt that he, in fact, possessed that gun? You know, quite frankly, it can go either way, but from where Im standing, an issue being able to go either way probably doesnt amount to proof beyond a reasonable doubt. It may be, you know, by a preponderance or clear and convincing. It may be clear and convincing that its probably his. But `probably, again, is not beyond a reasonable doubt. So if you think to yourself that it was probably his, that doesnt cut it. That doesnt cut it in our system where the D.A. must prove each and every element beyond a reasonable doubt. So I would ask you to carefully consider the elements of those charges and enhancements that we are disputing."
By no stretch of the imagination did the foregoing argument amount to an admission, veiled or otherwise, that the gun belonged to defendant. Rather, it was an argument for why the prosecution had failed to meet its burden of proof — an argument that favored defendant. Defendant has not shown that this argument fell below the standard of a reasonably competent attorney.
Furthermore, defendant has not shown a reasonable probability that absent this argument he would have obtained a better result. His assertion that counsels strategy of "emphasiz[ing] the prosecutions difficulty in satisfying the reasonable doubt standard" "backfired" is pure ipse dixit. Moreover, his attempt to compare his attorneys argument with the defense attorneys "express[] refus[al] to actively participate in his clients trial" in People v. McKenzie (1983) 34 Cal.3d 616, 623 is absurd. Defendant has shown neither deficient performance nor prejudice; thus, he has failed to show that he received ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur:
RAYE Acting P.J.
CANTIL-SAKAUYE, J.