Opinion
A146674 A150889
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. TERRELL BLAND, Defendant and Appellant. In re TERRELL BLAND, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC187526B)
Terrell Bland was convicted of second degree robbery with enhancements for prior convictions. In this appeal, he contends the trial court erred in admitting evidence of a gun and a bullet found in his child's mother's apartment; misinstructed the jury on the permissible use of that evidence; improperly restricted his attorney's cross-examination of the officer who found it; and failed to instruct the jury on theft as a lesser included offense of robbery. Bland also contends there was insufficient evidence to support his conviction. In his appeal and a consolidated petition for writ of habeas corpus Bland asserts his trial attorney was ineffective for failing to object to the gun evidence as unduly prejudicial. None of his contentions have merit, so we affirm the conviction and dismiss the petition.
We will refer to the gun and bullet jointly as the gun evidence.
BACKGROUND
On January 10, 2014 Manuel A. was parked in a San Rafael parking lot when Bland approached him and asked about the odor of marijuana coming from his car. Bland introduced himself as "Tip" and asked the victim if he had any marijuana to sell. The victim offered a sample of marijuana, gave Bland his phone number and said to call if he needed anything.
We will refer to Manuel A. as the victim to preserve his privacy. We intend no disrespect by this practice.
A couple of weeks later Bland called the victim to ask if he could "hook him up with a sack, with an ounce of marijuana." The victim agreed to meet Bland in Marin City, but when he got into town he called Bland who said he no longer needed it. A couple of weeks after that Bland called the victim again, this time asking for "at least a couple pounds . . . around four." The victim said he would see what he could do. Later he called Bland back to tell him he had the requested amount. Bland told the victim to meet him at the Best Buy in Marin City. The victim drove there, but when he saw a sheriff in the parking lot he called Bland and told him to meet in front of a nearby Outback Steakhouse. Bland drove up and parked alongside the victim's car in front of the restaurant. Another man was in the car with Bland.
Bland got into the victim's car. The victim showed him the marijuana he had for sale, which was in a garbage bag in the back seat, and told him about the product while Bland texted on his phone. As the victim spoke he noticed that Bland's passenger had gotten out of the car and was smoking a cigarette. The man was tall and lean and was wearing a black hoodie and pants. Bland said "oh, he's cool," and reassured the victim the man was a friend.
Bland said that "he had to go to San Rafael and that he'll be back and he'll call" when the friend for whom he was arranging the sale arrived in town. Bland called back later, said his buddy was almost in town, and arranged for the victim to meet them near the Burger King in Marin City. The sun was setting when the victim arrived and parked where Bland directed him. Bland's car was parked across the street, but Bland was not in it. The victim called him twice. Bland answered the second time. He said he had to do something in his house and would come out in a moment.
While he was waiting the victim noticed a couple of people walking around talking on their cell phones, including a heavyset man he later identified as Bland's co-defendant Wallace. The victim looked down to text his wife. When he looked up he saw Bland walking along the curb. Bland stepped off the curb, raised his arm and looked to the right. When he saw the victim watching him he "pretty much got back onto the curb and started walking toward my car." Bland got in the front seat said they had to wait for his friend. He told the victim he lived in the adjacent house and that they were going to use his garage.
After a couple of minutes Bland began using his phone. The victim noticed Wallace cross the street and walk toward his car. Bland identified Wallace as the friend who had the money and wanted to buy the victim's marijuana. Wallace got in the back of the victim's car behind Bland. At Bland's suggestion, the victim agreed to go into Bland's garage to weigh the marijuana. The victim got out of the car, opened the door behind the driver's seat and grabbed the garbage bag of marijuana.
The victim followed behind as Bland walked toward what he had identified as his house. Wallace at first stayed by the victim's car, but as the victim started up the walkway toward the door Bland slowed his pace and Wallace came up from behind. The victim heard a loud click and looked back to see Wallace pointing a black semiautomatic gun at him. Wallace ordered him to drop what he had and get down. The victim dropped the marijuana. Then the man in the black hoodie he had seen with Bland at the Outback restaurant ran from near Bland's car toward the victim, and another man he had seen walking around the area approached with another gun and put it to the victim's head. The man in the black hoodie got behind the victim, told him to "get down, this is the hood, nigger, we'll shoot," and put a gun to his head. The victim complied.
Just before the victim hit the ground he saw Bland standing against a wall about 10 or 15 feet away. The victim did not see Bland with a gun. Three guns were pointing at the victim, one at the back of his head, one at the front of his head, and one at his ribs. Two of the guns were black and one was a "silverish dark metallic gun."
As the victim lay face down on the ground he saw Wallace cross toward the bag of marijuana "and I heard rustling with the bag, and everything." Bland left in the direction of his car. The other men took the victim's keys and phone, then ran away. The men had taken approximately four pounds of marijuana worth $8,000 to $10,000.
Later that night the victim identified Bland's photograph from a nine-picture photo lineup. Police found approximately two pounds of marijuana in the victim's car, which he said was for his personal use.
Several weeks later the victim was installing cabinets about a half mile from where he was robbed. From the garage where he was working he saw Bland talking to a man and then walk away toward an apartment complex. As the victim drove away 15 or 20 minutes later he saw Bland in his parked car, apparently about to drive off. Bland pulled up alongside the victim's car at a stop sign. The victim was frightened. Bland said "I ain't going to do anything to you, I'm not going to hurt you." He had a "smirk on his face. [¶] . . . [¶] [J]ust like—it was just not a nice smirk, you can say. It wasn't—it was like, you know, saying, oh, yeah, we got you, you know." The victim told Bland that "this wasn't over yet. Meaning this whole situation that was going on, it wasn't over." Bland followed him as he drove away, so the victim pulled up in front of the sheriff's substation and parked. Bland parked behind him and got out of the car.
The victim approached. Bland told him that they "got mugged by the same people" and "there's stuff that [they] need[ed] to clear up." The victim said his story was "BS" because Bland was able to retain his keys and drive off after the robbery, and because the victim had seen two of the robbers with him earlier. Bland walked into the sheriff's station, followed by the victim. He told the desk clerk or deputy "that we needed to speak with somebody because we needed to clear stuff up." Deputy Kashak, who had responded on the night of the robbery, observed Bland and the victim arguing and pushed the victim outside to separate them. The victim told Kashak he was scared and asked why Bland was not in jail.
In late April police found an unloaded .22 caliber semiautomatic pistol and an unspent .45 caliber round in the top drawer of a TV stand in the Marin City apartment occupied by Bland's child and her mother. In the same drawer police also found a PG&E rebate check made out to Bland and a Marin County Superior Court form, both addressed to Bland at that address. Two California identification cards and a high school diploma in Bland's name were found on a table near the nightstand. Police had seen Bland enter and leave the apartment without knocking on several occasions.
Phone records showed Bland called Wallace's phone once on January 9, and five calls between Bland's and Wallace's phones between 12:12 a.m. and 3:24 p.m. on January 12. Wallace's phone also contained a screenshot of a news article about the robbery.
Bland and Wallace were charged with second degree robbery. The jury found Bland guilty and acquitted Wallace. The court also found true enhancement allegations that Bland had a prior strike conviction and a prior conviction of a serious or violent felony. This appeal is timely.
DISCUSSION
I. The Gun Evidence
Bland argues the trial court erred when it admitted the gun and bullet found in the search of Bland's child's mother's apartment because, he contends, the evidence was irrelevant, functioned as improper character evidence, and was unduly prejudicial. On appeal and in his related habeas petition, Bland contends his trial counsel was ineffective for failing to object that the gun evidence violated Evidence Code section 352. None of these arguments are persuasive.
Further statutory citations are to the Evidence Code.
A. Background
The court ruled in limine that the prosecution could introduce the gun evidence as circumstantial evidence that Bland had access to a gun and had the means to provide a gun to the other robbers. It explained: "On page 17 of the motion [the prosecutor's] argument is that the possession of a gun two months after the charged offenses are relevant because the guns match the description of the guns used in the robbery and those guns were never recovered. Also the People point out that Mr. Bland was not armed at the time of the offense. This is independent circumstantial evidence that he had access to a gun and may have provided or had the means to provide a gun to others. [¶] So . . . it seems to me that it's circumstantial evidence to support the prosecution's case that this—that Mr. Bland had access to guns and these may be the guns in question. So I wasn't really ruling on it under [section] 1101(b)."
Defense counsel objected that there was no link between the gun found in the nightstand and the guns used in the robbery, but the court reiterated, "I think the idea that a gun arguably was in Mr. Bland's possession within two months of the charged offense is circumstantial evidence that he may have been involved in the offense. And so that's how it's coming [in]."
B. Analysis
Bland argues the gun evidence was irrelevant because the basis for its admission rested on mere speculation that he provided a gun to one of the robbers and that it was returned to him after the robbery. He also contends the gun evidence was irrelevant to prove he had access to a weapon because, as we understand the argument, there was no evidence he knew it was in the apartment or that he would have used a gun that, as may or may not have been the case, did not belong to him. In essence, he argues the evidence seized from the apartment showed only that "he had been in the apartment on several occasions" and that some documents bearing his name were found in and near the drawer where a gun was found. This, he maintains, proved nothing. The trial court could reasonably disagree.
Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) We review a trial court's relevance determination for abuse of discretion and will not disturb its ruling except on a showing that it exercised that discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Alvarez (1996) 14 Cal.4th 155, 201.)
Here, Bland had been seen walking in and out of the apartment in January 2014 "with no key, without knocking." Several months after the robbery, police found a PG&E rebate check and a court form in Bland's name and mailed to him at the apartment's address in the same drawer as the gun and bullet. Two California IDs and a diploma in his name were found nearby. This evidence supports reasonable inferences that Bland had access to a gun and may have supplied one of the weapons used in the robbery. " 'When the specific type of weapon used to commit a [crime] is not known, it may be permissible to admit into evidence weapons found in the defendant's possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon.' " (People v. Cox (2003) 30 Cal.4th 916, 956, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Rinegold (1970) 13 Cal.App.3d 711, 720.) In People v. Carpenter (1999) 21 Cal.4th 1016, 1052, for example, the Supreme Court explained the trial court properly admitted testimony that the defendant showed the witness a gun that resembled the murder weapon. "Although the witnesses did not establish the gun necessarily was the murder weapon, it might have been. . . . The evidence was thus relevant and admissible as circumstantial evidence that he committed the charged offenses." (Ibid; see People v. Neely (1993) 6 Cal.4th 877, 896; see also People v. Lane (1961) 56 Cal.2d 773, 784-785; see also People v. Riser (1956) 47 Cal.2d 566, 577, overruled on another point in People v. Chapman (1959) 52 Cal.2d 95, 98.) So too here.
Because the gun evidence was properly admitted as circumstantial evidence of Bland's involvement in the robbery, we will not address his further argument that it was inadmissible to prove identity under Evidence Code section 1101. We observe, however, that the court expressly admitted the evidence as relevant circumstantial evidence, and did not consider it to be "other acts" evidence admissible under section 1101, subdivision (b). --------
In his habeas petition, Bland argues his trial attorney was ineffective because he did not expressly argue the gun evidence was unduly prejudicial as well as irrelevant. A finding that a defendant was denied his right to effective assistance of counsel requires proof that counsel's performance was deficient and that the defendant was prejudiced. (In re Fields (1990) 51 Cal.3d 1063, 1068.) Bland has shown neither. His attorney argued the evidence had little or no probative value and that the prosecution was using it "just [as] a smear tactic," i.e., for its potential to portray defendant as a bad actor for reasons unrelated to the charged offense. Counsel did not expressly couch his argument in terms of section 352 or undue prejudice, but its import was clear.
Nor are we persuaded of any possibility the court would have excluded the gun evidence under section 352 had counsel more clearly articulated the objection. "[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.) In the factual context of this case there is no likelihood the court would have found evidence that Bland had access to a gun was of such a nature.
II. Officer Gullett's Cross-Examination
Bland contends the court improperly restricted his attorney's cross-examination of Officer Gullett, who testified about the search of the apartment where the gun was found. Here too, we disagree.
A. Background
The following exchange took place during defense counsel's cross-examination of Officer Gullett. "Q. Okay. Did you establish anybody else was residing in that apartment? [¶] A. No. [¶] Q. Well, you list Steven Lewis. He was there, correct? [¶] [Prosecutor]: So, objection. Beyond the scope. [¶] The Court: It assumes a fact not in evidence. I'll sustain that type of an objection. [¶] [Defense Counsel]: [¶] Q. Did you find Steven Lewis present in the apartment? [¶] A. No."
When asked by defense counsel whether he listed Lewis in his police report, Officer Gullet began answering that "[h]e's listed as a person because we found—." The court sustained the prosecutor's objection that the question was beyond the scope of her direct examination. Cross-examination then continued: "Q. There were other people living in that apartment, correct? [¶] A. I don't know. [¶] Q. Did you not try to ascertain who else lived in that apartment?" At that point the prosecutor objected that the question called for hearsay, and the court sustained the objection.
B. Legal Principles
" 'The constitutional right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility.' [Citation.] 'As the high court has explained, cross-examination is required in order "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." [Citation.]' [Citation.]
" ' "[But i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." [Citations.]' [Citation.] . . . [¶] ' "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." [Citations.] Exclusion of impeaching evidence on collateral matters which has only slight probative value on the issue of veracity does not infringe on the defendant's right of confrontation.' [Citations.] Ordinarily, proper application of the statutory rules of evidence does not impermissibly infringe upon a defendant's due process rights. [Citations.]" (People v. Ardoin (2011) 196 Cal.App.4th 102, 118-119; People v. Lucas (2014) 60 Cal.4th 153, disapproved on another point in People v. Romero (2015) 62 Cal.4th 1, 53, fn. 19; People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
We review the trial court's decision to limit cross-examination for abuse of discretion. (People v. Wissenfeld (1951) 36 Cal.2d 758, 765-766.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (People v. Clark (2011) 52 Cal.4th 856, 932.)
C. Analysis
Bland takes issue with the court's rulings that defense counsel's cross-examination about Lewis or others who might have frequented the apartment assumed facts not in evidence, exceeded the scope of direct examination or called for hearsay. Assuming arguendo that the court erred in grounding its rulings on those bases, the supposed error was harmless under any standard. Bland maintains the rulings were prejudicial because answers to his attorney's questions could have undermined the inference that he had access to the gun. But we fail to see how. Testimony that people other than Bland and his child's mother had access to the apartment would not have weakened the inference that Bland also had access to the gun found with his personal documents. Bland also claims the testimony his counsel sought to elicit "could have impugned the adequacy of the police investigation, and thereby of the prosecution's claim appellant had access to the gun and bullet," but he fails to show why and his reasoning is not self-evident. "[I]n order to prove that the error was in violation of the Sixth Amendment's confrontation clause, defendant must demonstrate that the prohibited cross-examination would have produced 'a significantly different impression of [the witness's] credibility.' " (People v. Lucas, supra, 60 Cal.4th at pp. 153, 272; People v. Frye, supra, 18 Cal.4th at p. 947.) Bland has not done so.
III. CALCRIM No. 375
Bland next contends the jury was misinstructed on how to consider the gun evidence because, in his view, there is a reasonable possibility the jurors would have understood the instruction as permitting them to consider the gun as improper character evidence of his criminal proclivity. This claim was forfeited. It is also meritless.
Both parties requested that the court give CALCRIM No. 375. The version read to the jury instructed: "The People presented evidence that a gun was located at 49 Cole Drive, Number 17, in April of 2014. You may consider this evidence only against defendant Bland if the people have proved by a preponderance of the evidence that defendant Bland had access to this firearm. [¶] . . . If the people have not met this burden you must disregard this evidence entirely. If you decide that defendant Bland had access to this firearm you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not defendant Bland was the person who committed the offense alleged in this case.
"In evaluating this evidence consider the similarity or lack of similarity between—between the gun located and the described gun on the incident date. Do not conclude from this evidence that the defendant Bland had a bad character or is disposed to commit crime. If you conclude that defendant Bland had access to this gun that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove that defendant Bland is guilty of the crime charged. The people must still prove each element of the charge beyond a reasonable doubt." (Italics added.)
Bland argues the italicized language invited the jurors to consider the gun as character evidence: "since appellant's identity was not in dispute, it was wholly reasonable, and indeed perhaps unavoidable that jurors would have interpreted the instruction literally, and thereby as character evidence." Somewhat more cryptically, he also suggests the jurors would have "construe[d the] authorization to weigh this evidence under a lesser standard as a reason to excuse the lack of solid evidence to justify its admission in the first place." The error, he urges, was prejudicial under state and federal standards for reversible error.
Not so. Bland did not request a clarification of the language he now contends was misleading, so he may not now "complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete." (People v. Lang (1989) 49 Cal.3d 991, 1024, abrogated on another point in People v. Diaz (2015) 60 Cal.4th 1176, 1190; People v. Andrews (1989) 49 Cal.3d 200, 218.) The claim fails on the merits as well. The jury was explicitly instructed not to conclude from the gun evidence that Bland "had a bad character or is disposed to commit crime." It defies credulity to conclude the jury would have interpreted the italicized language as permitting it to do precisely what the instruction commands it could not, i.e., "conclude . . . that the defendant Bland had a bad character or is disposed to commit crime." Absent a showing to the contrary, we assume the jury understood and followed the instructions given. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
IV.Failure To Instruct On Theft As A Lesser Included Offense
Next, Bland claims the court violated his state and federal due process rights by failing to sua sponte instruct the jury on theft as a lesser included offense. Again, we disagree.
"Theft is a lesser and necessarily included offense in robbery; robbery has the additional element of a taking by force or fear. [Citations.] It is well settled that the trial court is obligated to instruct on necessarily included offenses—even without a request—when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense." People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) "On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. . . . [¶] . . . [T]he existence of 'any evidence, no matter how weak" will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Ibid.)
Here, there was no evidence from which the jury could have concluded Bland participated in taking the victim's property but did not accomplish the theft through force or fear. The victim testified he was ambushed by four men, forced to the ground, held at gunpoint and threatened with death. That, undoubtedly, qualifies as "force or fear." "The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property." (People v. Ramos (1980) 106 Cal.App.3d 591, 601-602, disapproved on other grounds in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16.) It is not necessary that there be direct proof of fear; fear may be inferred from the circumstances in which the property is taken. (People v. Holt (1997) 15 Cal.4th 619, 690.) To convict Bland of theft but not robbery, the jury would have had to believe the victim's testimony that Bland and his cohorts took his property, but at the same time reject his testimony that to do so they surrounded him and held him at gunpoint. But "an unexplainable rejection of the prosecution's evidence" does not constitute substantial evidence the defendant is guilty only of a lesser included offense. (People v. Kraft (2000) 23 Cal.4th 978, 1063.)
Bland asserts the jury could have found he did not know his cohorts intended to rob the victim and that, instead, he intended only to facilitate a "snatch and grab" or to steal the victim's car or the marijuana left in it after the victim got out to ostensibly sell the other four pounds in the garage. But the record contains no evidence of such a plan and it cannot be reasonably inferred. "Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included offense." (People v. Wilson (1992) 3 Cal.4th 926, 942; People v. Kraft, supra, 23 Cal.4th at p. 1064.) The court was not obligated to instruct on theft as a lesser included offense of robbery. Moreover, in light of the evidence it is not plausible that the jury would have found Bland guilty only of theft and acquitted him of robbery had the instruction been given. Accordingly, assuming arguendo the court erred, the error was harmless. (See People v. Breverman, supra, 19 Cal.4th at p. 165 (Watson standard of reversible error for omission of instruction on lesser included offense].)
V. Substantial Evidence
Finally, Bland asserts there was insufficient evidence that he "knew and intended his arranging for the sale of [the victim's] marijuana would encourage or assist in the robbery" to support his conviction as an aider and abettor. This is so, he suggests, because the evidence showed only that he arranged the contact between the victim and the men who stole the victim's marijuana and that he was present during the robbery, and therefore failed to establish that he " 'act[ed] with knowledge of the criminal purpose of the perpetrator[s] and with an intent or purpose of either committing, or of encouraging or facilitating commission of, the offense.' " (People v. Mendoza (1998) 18 Cal.4th 1114, 1123, italics omitted.) Again, we disagree.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Moreover, we " 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]' [Citation.] 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]' [Citation.] Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
The jury heard evidence that Bland approached the victim and set up the rendezvous at which the robbery took place. He groomed the victim over several hours, changed the location of the transaction and delayed it until the sun went down while the other robbers loitered and waited nearby. Just before the robbery he appeared to make a furtive hand gesture to a couple of the other men. Bland led the victim to a house that was not his while claiming they were going to his garage. He slowed down when they reached the spot where the robbery was to occur and pinned the victim between himself and Wallace, who immediately put a gun to the victim's head. Cell phone records showed several calls between Bland and Wallace the day before the robbery and two days later. Two weeks later Bland drove up next to the victim's car with "a smirk on his face" that the victim interpreted as "knowing what happened that night . . . saying, oh, yeah, we got you, you know." And, finally, several months later police found a gun in an apartment Bland was known to frequent and in a drawer with some of his personal indicia that generally matched the victim's description of a gun used by one of the robbers. The evidence was sufficient for the jury to find Bland knew and intended that his actions would encourage or assist the robbery.
DISPOSITION
Because we have consolidated Bland's petition for writ of habeas corpus with his appeal, we deny the request for judicial notice of the appellate record as unnecessary. The petition for writ of habeas corpus is denied. The judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.