Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. KA076914, Daniel J. Buckley, Judge.
Gerardo Vasquez, in pro. per., and Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant Gerardo Vasquez.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Nelson Enrique Perez.
No appearance for Plaintiff and Respondent.
MALLANO, Acting P. J.
In a joint jury trial, Gerardo Vasquez and Nelson Perez were convicted of robbery (Pen. Code, § 211), during which Vasquez personally used a firearm (id., § 12022.53, subd. (b)) and Perez was armed with a firearm (id., § 12022, subd. (a)(1)). The convictions arose from an incident that occurred in the early morning hours of August 14, 2006, when defendants approached Alexander Rodriguez, who was sitting in his car getting ready to go to work. Vasquez displayed a gun and demanded Rodriguez’s money, and defendants fled after Rodriguez complied with the demand. Vasquez and Perez were also each charged with carjacking and two counts of robbery arising from a separate incident. The jury was unable to reach verdicts on the counts arising from the separate incident, which were dismissed in furtherance of justice. Vasquez was sentenced to the middle term of 3 years for robbery with a 10-year enhancement for firearm use. Perez was sentenced to the middle term of 3 years for robbery with a 1-year enhancement for a principal being armed.
Mohamad Elhhawary was tried as a participant with Vasquez and Perez in this incident and was convicted of robbery and felony evading an officer while driving recklessly. He is not a party to this appeal.
Vasquez and Perez each filed a timely notice of appeal. We appointed separate counsel to represent them and counsel in each case filed a brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436, 441–442.) Upon the filing of each brief, we sent letters to defendants and to their counsel in which we directed counsel immediately to forward the appellate record to his or her client and informed defendants that within 30 days they could personally submit any contentions or issues that they wished us to consider. We received nothing from either defendant during the 30 day period and on March 21, 2008, filed an opinion affirming the convictions of both defendants. We later received a submission from Vasquez, accompanied by an explanation that he could not reply within the 30 days because his unit in prison had been moved. Accordingly, on April 15, 2008, we vacated our prior opinion so that we could consider Vasquez’s arguments.
Vasquez argues that Rodriguez’s identification of him was not credible because at the preliminary hearing Rodriguez identified Perez and Elhhawary as the perpetrators of the robbery but at trial Rodriguez was certain that Vasquez, rather than Elhhawary, was a perpetrator and was the one holding a gun. (Vasquez was bound over for trial based on evidence that Rodriguez had identified Vasquez at an in-field show-up.) Vasquez also questions the sufficiency of the evidence of his gun use because Rodriguez never testified that Vasquez pointed the gun at him and there was no evidence that the gun belonged to Vasquez.
Rodriguez’s failure to identify Vasquez at the preliminary hearing was fully explored during questioning at trial. The jury chose to believe that Vasquez was mistaken at the preliminary hearing and that his identification of Vasquez at trial was correct. “‘It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.’ [Citations.]” (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) As there was nothing physically impossible or inherently improbable about Rodriguez having made a mistake during his testimony at a preliminary hearing and then correcting the mistake at trial, we must accept Rodriguez’s trial testimony that Vasquez was one of the perpetrators of the robbery.
Rodriguez further testified at trial that Vasquez pulled a gun from his waistband and held it partially concealed beneath his jacket as he asked Rodriguez for his money. A finding of personal use of a firearm does not require that it be pointed at someone. Rather, such use may be established by evidence of having displayed the firearm during the commission of a felony in a menacing manner, such as occurred here. (See People v. Chambers (1972) 7 Cal.3d 666, 672; Pen. Code, § 1203.06, subd. (b)(2).) Nor is there any requirement that the firearm belong to the defendant who is using it. Accordingly, the jury’s finding that Vasquez used a firearm in the commission of the robbery must be upheld.
We have examined the entire record and are satisfied that defendants’ counsel have fully complied with their responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgments are affirmed.
We concur: VOGEL, J., ROTHSCHILD, J.