Opinion
D058887 Super. Ct. No. SWF021566
12-14-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVON DAJUAN BLACKSTONE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Dennis A. McConaghy, Judge. Affirmed as modified and remanded with directions.
A jury convicted Davon Dajuan Blackstone of 19 counts of robbery (Pen. Code, § 211) and six counts of false imprisonment (§ 236). It found true enhancement allegations that he personally used a firearm in the commission of the crimes. (§ 12022.53, subd. (b).)
All statutory references are to the Penal Code.
The court sentenced Blackstone to an aggregate term of 42 years in state prison. Blackstone admitted committing robberies at a Chick-Fil-A restaurant (counts 1-9) and the accompanying firearm use enhancement allegations (counts 1-3). The jury acquitted him of two robbery counts at a Carl's Jr. restaurant (counts 14, 19).
Blackstone challenges the sufficiency of the evidence to support his remaining robbery convictions relating to the Carl's Jr. incident (counts 15-18 and 20), and seeks correction of the abstract of judgment to specify his precise prison term and to adjust a fine amount. We affirm the judgment as modified.
FACTUAL BACKGROUND
Prosecution's Case
On April 3, 2007, Daniel Del Real (Daniel) was at Carl's Jr. around the 10:00 p.m. closing time with family and friends. An African-American man, who was approximately six feet tall and weighed approximately 160 pounds, entered the store and ordered them and three restaurant employees to the back of the store. In a photograph shown to the jury, Daniel identified the robber as wearing a white hat and a red bandana over his face, and holding a black handgun. The robber ordered the victims to get on their knees and empty their pockets. They complied, he collected their valuables and left through the emergency exit. Other Carl's Jr. patrons that night, including Ignacio Del Real, Franco Covarrubias, Jose Coconi and Michael Ramirez, plus Carl's Jr. employee, Gabriel Garcia, testified at trial in accord with Daniel. They also identified the robber in photographs.
Because Daniel Del Real and Ignacio Del Real share the same surname, for clarification, we refer to them by their first names.
Several of Blackstone's other victims testified regarding crimes he had committed between January 4, 2007, and April 22, 2007, at different eateries, including an ice cream parlor, a pizza restaurant, another fast food restaurant, and two coffee shops.
We need not set forth the details regarding those convictions which Blackstone does not specifically challenge on appeal.
Riverside County Sheriff's Deputy Hector Velasquez investigated the robbery and interviewed the victims separately that night. Two of them stated the robber had threatened them with, "If anyone does something or tries to run, I'll kill them." Different witnesses separately identified the robber as being an African-American male who was approximately six feet tall, weighed 180 pounds, and wore a red bandana. One witness said the robber carried a black semi-automatic handgun. When Police arrested Blackstone, they found a hat, a red bandana and several small bills and rolls of coins at his mother's home and another home.
Riverside County Sheriff's Detective Nelson Guzman investigated the robberies and concluded they shared similarities that demonstrated Blackstone's modus operandi: "[T]he suspect wore particular clothes and tried to disguise himself in similar fashion, would come into the establishments, usually fast-food-type places, would order the victims to get down on their knees, would ask if there's anybody in the back, or would physically check himself if there was anybody in the back. [¶] When he asked for the money, he would always — a bag was taken from the store itself, not one that he would bring in or put money in his pocket or anything." Detective Guzman added, "There were bandanas used to cover the [robber's] face. There was a distinctive white hat that was worn by the suspect. There was the same gloves used in a few of them, except the Chick-Fil-A where there was only the one glove." Detective Guzman further testified the victims "always described [the weapon] as a small black or silver handgun that could have a satin finish." The victims described the robber's distinct voice as calm, and he would repeat his demands or requests twice.
Defense Case
Blackstone testified he is six feet tall, and admitted that when he committed the Chick-Fil-A robberies he wore a mask and a red bandana and used a gun. He denied committing the other robberies.
DISCUSSION
I.
Blackstone contends, "There was no evidence of any eyewitness identifications of [him] as the perpetrator. There was no evidence of any voice identifications of [him] as the perpetrator. Nor was there any fingerprint, DNA, or other physical evidence that linked [him] to the commission of [the Carl's Jr. offenses]. . . . [¶] The evidence introduced at trial merely established that the perpetrator was between [five feet eight inches] and six feet tall, was holding a gun, was wearing a white cap and a red bandana, ordered the victims to the back of the restaurant where he took their money, and exited through the rear of the store. These facts were not sufficiently distinctive to demonstrate the identity of the robber, such that the evidence that [he] committed the other robberies was sufficient to establish that he committed this one."
When sufficiency of the evidence is challenged on appeal our role in reviewing the evidence is limited. We do not reweigh the evidence and substitute our judgment for that of the jury. (People v. Escobar (1996) 45 Cal.App.4th 477, 481.) Instead, we must determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Jones (1990) 51 Cal.3d 294, 314.) "When reviewing a claim of insufficiency of the evidence to support a conviction, we view the entire record in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment." (People v. Abrego (1993) 21 Cal.App.4th 133, 136.) This standard applies whether direct or circumstantial evidence is involved. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) This court's authority begins and ends with a determination of whether any substantial evidence, disputed or not, supports the verdict. Thus, where the record discloses substantial evidence — that is reasonable, credible and of solid value — we accord due deference to the trier of fact. (People v. Jones, supra, 51 Cal.3d at p. 314.) " '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.] '[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' " (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.)
Here, we conclude sufficient evidence was presented through the percipient witnesses' testimony, including the photographic evidence, which established that the Carl's Jr. robbery occurred. The jury could reasonably infer from the photographic evidence and testimony regarding the other crimes, including from Detective Guzman, that the robberies shared sufficient similarities constituting a pattern identifiably associated with Blackstone.
Blackstone's contrary claims, set forth in detail above, are unavailing because in assessing the sufficiency of the evidence we do not reweigh the evidence, and Blackstone has not shown it was improbable he committed the Carl's Jr. robberies. We are also mindful of the California Supreme Court's mandate: "The existence of possible exculpatory explanations, whether they are simply suggestions not excluded by the evidence or even where they could be reasonably deduced from the evidence, could not justify this court's rejecting the determination of the trier of fact that defendant is guilty unless on appeal it 'be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the [trial court.]' " (People v. Redrick (1961) 55 Cal.2d 282, 290.)
We note that to the extent Blackstone challenges the prosecution's argument that the evidence pointed to his modus operandi, the jury heard both sides of the argument and by finding Blackstone guilty, elected to believe the prosecutor's theory. Specifically, the prosecutor said in closing arguments that circumstantial evidence supported the Carl's Jr. convictions: "So what do we have with Carl's Jr. We have similar [modus operandi (MO)]. We have a young African-American male with a small semiautomatic handgun, red bandana, white hat, with a distinctive red piping. Takes the employees and the patrons to the back of the store. Makes the same type of demands. Uses a bag from that store to take the cash and the money away. That is incredibly distinctive and similar MO. And that is incredibly strong circumstantial evidence showing that [Blackstone is guilty]."
Defense counsel in closing arguments challenged the prosecution's theory of the case and its inconsistent reliance on Blackstone's supposed modus operandi: "So the [prosecutor] got up and he hammered over and over again about similar MO, and similar MO, and similar MO. And when it was dissimilar, well, he was just dissimilar in this MO because he wanted you to — or didn't want to tip them off that he had worked there before. Well, which is it? Similar MO or not similar MO? But he hammered over and over and over."
II.
Blackstone contends the abstract of judgment is confusing regarding his total sentence, and it should be modified to specify he was sentenced to a total of 42 years in prison. He explains that the abstract does not indicate whether his sentences are to be served concurrently or consecutively, and it gives the impression he was sentenced to 154 years and 4 months. We agree.
Blackstone and the People agree the trial court erroneously imposed a $619.40 fee because section 1202.5 states a $10 fee can only be imposed once in a case. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) We accept the concession, and the abstract of judgment should be modified accordingly.
DISPOSITION
The trial court is directed to modify the judgment to specify that Davon Dajuan Blackstone's total prison term is 42 years, and the fine imposed under Penal Code section 1202.5 is $10, and amend the abstract of judgment accordingly. As so modified, the judgment is affirmed. The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR:
McDONALD, Acting P. J.
AARON, J.