Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA079812-03. John David Lord, Judge.
Murray Kamionski, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Terrance Lee Bracks appeals from his conviction for attempted robbery with a personal use of a firearm enhancement and for a felon in possession of a weapon. His only contention on appeal is that the firearm enhancement is not supported by sufficient evidence. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), on September 29, 2008, at approximately 12:50 a.m., Keith Burns was in his office at The Fantasy Castle, located in the City of Signal Hill. Burns served as the night manager and was talking to dancer Erica Morrow at the end of her shift when appellant Terrance Bracks and his accomplice, Jesse Stringfellow, entered the office. Appellant was holding a gun and told Burns, “Give me the money.” One of the men told Morrow to close the door. Morrow exited the office, walking past appellant and Stringfellow and towards the dressing room. Burns exited the office immediately after Morrow and walked toward the front door of The Fantasy Castle. The attempted robbery was thwarted when Burns left the office and the assailants were unable to take any of the money with them.
En route to the front door, Burns encountered Steve Hoskins, a security guard at The Fantasy Castle. Burns yelled to Hoskins, “We’re being robbed, ” and instructed Hoskins to follow appellant and Stringfellow to the parking lot to avoid an altercation inside the club. Burns, Hoskins and two other security guards followed appellant and Stringfellow to the parking lot. Appellant and Stringfellow then ran across the street and got into separate cars, one of which was a red Ford Mustang.
Burns, Hoskins and the additional security guards saw two police vehicles parked approximately 100 yards away at a traffic stop. Officer Grove saw Burns and the others waving and instructed Officer Keren to go across the street to offer assistance. Grove immediately noticed a red Ford Mustang depart from across the street from The Fantasy Castle. The Mustang drove past Grove without its headlights on. Grove followed the Mustang in his vehicle, his police lights still activated from the traffic stop. He pursued the vehicle for approximately two minutes until the vehicle stopped, pulled over and Stringfellow exited from the passenger side with his hands up. Codefendant Andre McDuffy, who was driving the Mustang, sped off. Grove stopped his vehicle, apprehended Stringfellow, and took him into custody. Stringfellow was wearing a hooded sweatshirt when he exited the vehicle. Keren, who was driving behind Grove, continued to follow the Mustang.
Approximately one minute later, the Mustang failed to complete a turn, clipped a concrete center divider and came to a stop. Driver McDuffy exited from the driver’s side door and was taken into custody. McDuffy was wearing a black shirt and shorts when he exited the vehicle. Officer Keren then searched the vehicle, where he found appellant’s wallet on top of the center console and a firearm underneath the front passenger seat. Keren also found a pair of gloves under the grip of the firearm.
The Mustang was impounded and later recovered from the police station by appellant’s sister, Tenisha Ford. Appellant and Ford had cosigned a loan for the vehicle and Ford testified that appellant was in possession of the car on September 28, 2008. Appellant was arrested the afternoon after the attempted robbery when he came to the Signal Hill Police Department to pick up the keys to the Mustang.
The People charged appellant with two counts of attempted robbery (Pen. Code, §§ 644/211), one as to each victim: Burns and Morrow. He was also charged with one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and a personal use of a firearm enhancement was also alleged (§ 12022.53, subd. (b)). Appellant pled not guilty and was tried by jury in September 2009.
All undesignated statutory references are to the Penal Code.
The jury convicted appellant of one count of attempted robbery (as to victim Burns), and one count of being a felon in possession of a firearm, and found true that appellant had personally used a firearm during the commission of an attempted robbery under section 12022.53, subdivision (b). A mistrial was declared on the second count of attempted robbery and the charge was eventually dismissed. Appellant was sentenced to 20 years, 4 months in prison as follows: 2 years for attempted robbery, doubled to 4 years pursuant to the “Three Strikes” law (§ 1170.12), plus a consecutive 8-month term for being a felon in possession of a firearm, also doubled to 16 months pursuant to the Three Strikes law (ibid.), plus 5 years for the prior serious felony (§ 667, subd. (a)), and 10 years for the firearm enhancement (§ 12022.53, subd. (b)). This appeal follows.
STANDARD OF REVIEW
Evidence, viewed in the light most favorable to the judgment, is considered sufficient on challenge if a rational jury could have reached its verdict based upon the record in its entirety. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Jones (1990) 51 Cal.3d 294, 314; People v. Johnson (1980) 26 Cal.3d 557, 578.) We consider whether substantial evidence exists to support the jury’s verdict that no reasonable doubt existed of the defendant’s guilt, not whether we ourselves are convinced of the defendant’s guilt beyond a reasonable double. (People v. Reyes (1974) 12 Cal.3d 486, 496.) We defer to the jury as the trier of fact of the truth or falsity of facts and the credibility of witnesses. (People v. Jones, supra, at p. 314; People v. Barnes (1986) 42 Cal.3d 284, 304.) An appellate court may reverse for insufficient evidence only when no possible hypothesis exists that would allow the evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Redmond (1969) 71 Cal.2d 745, 755.) These principles apply to both substantive offenses and enhancements. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.)
DISCUSSION
Appellant contends that the firearm enhancement is not supported by sufficient evidence because a gun was recovered in the red Mustang, which was occupied by driver McDuffy and accomplice Stringfellow, not appellant. Appellant also contends that the video surveillance footage from The Fantasy Castle presented by the People at trial shows that the individual who entered Burns’s office with a gun was not appellant.
We conclude that sufficient evidence exists to support the jury’s finding that appellant used a gun during the attempted robbery. Within hours of the attempted robbery, Burns selected appellant from a six-pack photo lineup as the individual who entered his office holding a gun. Burns testified that he recognized appellant because appellant had been at The Fantasy Castle on the Sunday prior to the attempted robbery. Burns stated that appellant was sitting in close proximity to Burns’s office and was wearing a hooded sweatshirt and gloves. Appellant left The Fantasy Castle when Burns asked him to remove his hood. Burns also testified that appellant was not wearing a hooded sweatshirt when the attempted robbery occurred.
While viewing the surveillance video from The Fantasy Castle at trial, Burns identified two men exiting through the front door of the club as the men who attempted to rob him. Burns stated that one of the men was appellant and the second man, wearing a gray sweatshirt, was Stringfellow. He further testified that he kept his eye on appellant and Stringfellow as they exited the club, but that he was not watching them the entire time before they drove away. Although Burns stated that the individual holding the gun got into the Mustang, he acknowledged that his main focus at that point in time was signaling the police rather than watching the robbers flee.
Approximately one hour after the attempted robbery, security guard Hoskins also identified appellant out of six photographs as one of the two individuals that Burns directed him to follow out of The Fantasy Castle. Later that evening when Stringfellow was apprehended, Hoskins made an in-person identification of him as one of the two individuals involved. Officer Poor testified that Hoskins stated that Stringfellow was the individual who left the scene in a red Mustang and that driver McDuffy was not one of the two individuals who entered The Fantasy Castle. Officer Grove testified that Stringfellow was wearing a gray, hooded sweatshirt when he was arrested.
At trial, the People played the surveillance video from Burns’s office for the jury. The video shows an individual in a blue shirt enter Burns’s office, holding a gun. Burns also testified that appellant pointed the gun at him when appellant demanded that Burns “Give me the money.” Video surveillance footage from the camera over the front door of The Fantasy Castle shows two men exiting, one wearing a shirt, the other a hooded sweatshirt. Appellant argues that the video from Burns’s office shows that the individual who entered with a gun was someone other than appellant. However, it was for the jury to determine, based upon all the evidence including the video, the gunman’s identity. (People v. Jones, supra, 51 Cal.3d at p. 314; People v. Barnes, supra, 42 Cal.3dat p. 302.) Here, the jury could have reasonably decided that appellant was the individual in Burns’s office with a gun.
At oral argument, appellant’s counsel encouraged us to review the DVD of the attempted robbery and attendant events. He claimed the DVD would reveal that the person with the gun was not appellant. We have viewed the video and conclude that it appears it is appellant who displays the gun in the direction of Burns. In any event, we cannot say that no reasonable jury could have found that appellant was the person in the video.
Whether there were two guns or appellant handed the gun to Stringfellow or McDuffy before they entered the Mustang is not for us to decide. Based on the record before us, there was sufficient evidence to permit a rational jury to conclude beyond a reasonable doubt that appellant personally used a gun in the commission of the attempted robbery.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., FLIER, J.