Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Ct. Nos. F03906939-4 & F02900632-1. W. Kent Hamlin, Judge.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Dawson, J. and Hill, J.
STATEMENT OF THE CASE
On May 12, 2006, the Fresno County District Attorney filed a consolidated information in superior court charging appellant and codefendant Markeith Edward Canady as follows:
Count 1—second degree robbery of Stephen Montenegro (Pen. Code, § 211) with personal use of a firearm by Canady (§ 12022.53, subd. (b)) and with appellant’s knowledge that a principal to the substantive offense was personally armed with a firearm (§ 12022, subd. (d));
All further statutory references are to the Penal Code unless otherwise indicated.
Codefendant Canady is not a party to this appeal and both he and appellant were found not guilty of count 1. The issues addressed in the instant opinion relate to appellant Goins and to counts 2 and 3 only.
Count 2—second degree robbery of Antonio Palomares (§ 211) with personal use of a firearm (§ 12022.53, subd. (b)) (appellant only); and
Count 3—second degree robbery of Jose Becerra (§ 211) with personal use of a firearm (§ 12022.53, subd. (b)) (appellant only).
On May 17, 2006, the fifth day of trial, both sides rested.
On May 18, 2006, the jury returned verdicts finding appellant and Canady not guilty of count 1 and appellant guilty of counts 2 and 3. The jury also found the special allegations attached to the latter two counts to be true as to appellant.
Discrepancies between the language of the special allegations of the consolidated information and the forms of verdict are at the heart of a contention on appeal.
On September 8, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of 13 years in state prison. The court imposed the middle term of 3 years on count 2 and a consecutive term of 10 years on the related personal use enhancement. The court imposed a concurrent middle term of three years and the related 10-year enhancement on count 3.
On September 13, 2006, appellant filed a timely notice of appeal.
The facts of count 1, alleged to have occurred on September 28, 2003, of which both appellant and codefendant Canady were found not guilty, are not set forth. The facts set forth pertain to the events underlying counts 2 and 3 alleged to have occurred on October 11, 2003.
At 2:30 a.m. on October 11, 2003, Antonio Palomares and his wife, Rosa, were walking with Jose Pedro Becerra and Norma Martinez along San Pablo Avenue and McKenzie Street. The quartet had just left a party and the two couples were walking to Becerra’s home. Becerra and Martinez were walking about eight feet in front of the Palomareses. At one point, Antonio and Jose noticed a white Dodge Intrepid parked at the corner of San Pablo. The engine of the vehicle was running but the lights were off. The windows of the Intrepid were heavily tinted and the two couples could not see inside. As the foursome turned from San Pablo onto McKenzie they saw the same vehicle parked on the street in front of them. The license plate of the Intrepid read “Tyshon.”
Although it was dark outside, a light illuminated the street and made visibility clear. Appellant and another male got out of the Intrepid and confronted the two couples. Appellant approached the Palomareses and told Antonio, “Give me everything that you have.” Antonio kept walking until appellant pointed a black revolver at Antonio’s chest. Appellant told Antonio “he wasn’t playing.” Rosa became frightened and “thought we were both going to be killed.” Appellant eventually demanded that Antonio remove everything from his pockets. At this point, Antonio was four feet away from appellant and got a good look at appellant’s face. Although Antonio identified appellant as the gunman at trial, he did not identify appellant’s accomplice. Antonio placed his wallet, cell phone, necklace, and chain on the ground. Appellant kept the revolver trained on Antonio while picking up the personal property.
While appellant was robbing Antonio, his companion confronted Becerra and Martinez about 13 feet away. The accomplice pointed a black, semi-automatic “Escuadra” pistol at Becerra and demanded possession of Becerra’s wallet and boots. Antonio looked at Becerra during the robberies and saw the accomplice pointing the handgun at Becerra throughout the entire incident. Becerra handed over his wallet and the robber grabbed it. Becerra offered the accomplice his cell phone but the accomplice did not want it. After claiming the wallet, the accomplice demanded that Becerra remove his boots. Becerra hesitated until the accomplice pulled at the trigger on the gun.
Before Becerra handed over his boots, a neighbor came from a nearby apartment and both suspects fled to the Dodge Intrepid. Appellant entered the front passenger side of the Intrepid. The accomplice got into the rear driver’s side and the Intrepid sped away. Immediately after the departure of the Intrepid, Antonio called the police on Becerra’s cell phone and reported the robberies.
At 2:30 a.m. Fresno Police Officer Brian Urton was on patrol duty. He received a armed robbery broadcast for a 1996 or 1997 Dodge Intrepid bearing the license plate “Tyshon.” Officer Urton ran the plate and determined the vehicle was registered to a Madera resident. Because Highway 99 represented the one likely route to proceed from Fresno to Madera, Urton parked on the side of the highway near Herndon Avenue. At 3:47 a.m., Office Urton saw a white Dodge Intrepid bearing the license plate “Tishone.” The vehicle was a mid-1990’s vintage and was heading north on Highway 99. Urton followed the Intrepid on Highway 99 until it pulled off of the freeway at Avenue 12 in Madera. The Intrepid stopped in a gas station parking lot and Urton activated his overhead lights and parked his police vehicle to block the Dodge. Appellant was the only person inside the vehicle and he was taken into custody.
Fresno Police Officer Ignacio Ruiz responded to Antonio Palomares’s call and arrived at the crime scene within minutes of the robberies. After receiving a broadcast about the apprehension of a possible suspect, Ruiz transported Antonio and Jose Becerra to the gas station for a field show-up. Antonio said he was “absolutely positive” that appellant was the man who had robbed him. Antonio identified appellant based on the shape of his face and other facial features. Jose Becerra said appellant “looked like the one that had Antonio” but could not positively identify him.
The white Dodge Intrepid was registered to appellant’s girlfriend, Natisha Goins. Natisha testified she had been with appellant at her Madera home until 5:00 p.m. on October 10, 2003. She said she did not hear from him until 1:00 a.m. on October 11, 2003, when he called to say he was on his way home. During a postarrest interview, appellant admitted taking control of the Intrepid between 5:00 and 6:00 p.m. on October 10. Officers conducted a search of the vehicle but did not locate any of the stolen property or any weapons. However, officers did find multiple pieces of mail addressed to appellant inside the vehicle. Law enforcement officers found appellant’s fingerprints on the pieces of mail and the hood of the Intrepid.
Defense
The defense presented the testimony of Craig Harlan, Ph.D., a licensed marriage and family therapist for 30 years. Dr. Harlan discussed the general science behind eyewitness identifications but did not offer an opinion regarding the specific facts of the instant case.
DISCUSSION
The issues on appeal pertain to the section 12022.53, subdivision (b) enhancement for personal use of a firearm in the commission of the offenses alleged in counts 2 and 3.
Sufficiency of the Evidence: Count 3
Appellant contends the evidence was insufficient to show that appellant personally used a firearm in the robbery of Jose Becerra.
He specifically argues:
“The inquiry here relates to whether or not sufficient evidence was presented to find that Mr. Goins personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b) in the commission of the offense alleged in count 3—the robbery of Jose Becerra. [¶] ... [¶]
“With respect to section 12022.53, subdivision (b), it is apparent from the plain language of this section that, other than in a pled and proved street gang setting, it applies only to those persons who themselves personally use a firearm in the commission of the charged offense. In Mr. Goins case the evidence was undisputed that Mr. Goins’ use of a firearm was in the robbery of Mr. Palomares. While Mr. Goins may have been derivatively liable for the underlying crime of the robbery of Mr. Becerra as an aider and abettor, the evidence did not show that he personally used a weapon in that crime. [¶] ... [¶]
“Here, the record shows that when an unidentified man robbed Juan Becerra, Mr. Goins was completely occupied robbing Mr. Palomares several feet away. The evidence was undisputed that the unidentified man pointed a gun at Mr. Becerra, took his wallet, and ordered him to remove his boots. There is no indication in the record of any significant interaction between Mr. Goins and the unidentified robber other than arriving and departing in the same vehicle. There is no indication in the record of any interaction between Mr. Goins and the Becerras.
“... The evidence thus suggests that the robbery of Mr. Palomares was sufficiently separate from the robbery of Jose Becerra, that Mr. Goins’ use of a gun to rob the former, did not translate into use of the gun to rob Mr. Becerra. Accordingly Mr. Goins requests that the proved finding that he personally used a firearm in the commission of count three be reversed.”
Section 12022.53 is part of the 10-20-life law enacted in 1997 to enhance penalties for firearm use in the commission of certain felonies. The legislative intent behind the statute is the imposition of longer prison sentences upon felons who use firearms in the commission of their crimes, to protect citizens and to deter violent crime. (People v. Grandy (2006) 144 Cal.App.4th 33, 42.) Section 12022.53 recognizes different degrees of culpability and imposes three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of designated felonies. (People v. Martinez (1999) 76 Cal.App.4th 489, 495.) Section 12022.53, subdivisions (b) and (c) require that the defendant personally use or discharge a firearm in the commission of the underlying felony. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) The specific felonies to which subdivisions (b) and (c) apply are set forth in subdivision (a). Robbery is a specified felony.
Under section 12022.53, subdivision (b), if the defendant personally used a firearm, the mandatory additional consecutive punishment is 10 years. The phrase “uses a firearm,” as found in subdivision (b), encompasses the display of an unloaded or inoperable firearm. A defendant “uses” a firearm by intentionally displaying it in a menacing manner, firing it, or striking or hitting a human being with it. (People v. Grandy, supra, 144 Cal.App.4th at p. 42, citing People v. Martinez, supra, 76 Cal.App.4th at p. 493 and People v. Johnson (1995) 38 Cal.App.4th 1315, 1319-1321.) A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements. The enhancement is not limited to situations where the gun is pointed at the victim. Personal use may be found where the defendant intentionally displayed a firearm in a menacing manner to facilitate the commission of an underlying crime. (People v. Carrasco, supra, 137 Cal.App.4th at p. 1059.)
Appellant acknowledges “the evidence was undisputed that Mr. Goins’ use of a firearm was in the robbery of Mr. Palomares.” He further concedes he may have been derivatively liable for the underlying crime of the robbery of Becerra as an aider and abettor. Nevertheless, he maintains the evidence did not show that he personally used a weapon in the robbery of Becerra. Simple firearm use may include the threatening display of a gun or its use as a cudgel. (People v. Palacios (2007) 41 Cal.4th 720, 725, fn. 3.) Here, as respondent points out, appellant aided his accomplice in robbing Becerra by keeping Mr. and Mrs. Palomares occupied during the criminal encounter. By pointing his weapon at the Palomareses and demanding their valuables, appellant gave his companion both the time and opportunity to rob Mr. Becerra. In other words, appellant knew of his companion’s illegal purpose to commit the crime of robbery and intended to facilitate that unlawful purpose by his conduct with respect to Mr. and Mrs. Palomares. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Sufficient evidence supports the enhancement.
The Verdict Form: Counts 2 and 3
In the instant case, counts 2 and 3 of the consolidated information each alleged: “It is further alleged that said defendant(s) Jalani Jamahl Goines personally used a firearm within the meaning of Penal Code section 12022.53(b).” (Italics added.) However, the forms of verdict for counts 2 and 3, as given to the jury, each stated in relevant part: “WE FURTHER FIND the allegation that during the commission of the above offense the defendant, JALANI JAMAHL GOINS, was personally armed with a firearm ....” (Italics added.) The findings concluded with a blank line and a prompt to the jurors to enter the words “‘proved’” or “‘not proved.’” On May 18, 2006, the jurors returned verdicts, found appellant guilty of counts 2 and 3 (second degree robbery of: Palomares and Becerra, respectively), and found in each case the “personally armed” allegation to be “proved.”
On February 20, 2008, this court independently directed both parties to address the following question:
“What impact, if any, does the disparity in language between the consolidated information and the forms of verdict have upon the trial court’s ultimate disposition of the enhancement under Penal Code section 12022.53, subdivision (b) as to counts 2 and 3?”
On February 29, 2008, appellant filed a letter brief asserting that personal arming (§ 12022, subd. (a)) is a lesser included offense of personal use (§ 12022.53) and maintaining the 10-year consecutive sentence on count 2 and the 10-year concurrent sentence on count 3, both for use of a firearm, should be reversed. Appellant concluded “[b]ased on the enhancement found true by the jury the correct additional punishment is one year.” In a letter brief filed that same date, respondent maintained the discrepancy between the consolidated information and the returned forms of verdict was merely an irregularity in the latter. Respondent further maintained that technical defects in a verdict could be disregarded where, as here, “‘the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.’”
In People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter), defendant was convicted of unlawfully taking a vehicle, evading a police officer with willful and wanton disregard for the safety of others, and three counts of assault on a peace officer with a firearm. The jury also found he was personally armed with a firearm in the commission of the offenses. On appeal, the defendant claimed he was found guilty of being armed with a firearm, which under section 12022 could not be charged as an enhancement to the crime of assault with a deadly weapon or firearm. The information alleged the defendant personally used a firearm in the commission of the offenses (§ 12022.5). The court properly instructed the jury as to personal use pursuant to CALJIC No. 17.19. The preprinted forms of verdict referenced the numerically correct section (§ 12022.5) but purported to find that the defendant “‘was armed with a firearm’” during the commission of the offenses. (Trotter, supra, 7 Cal.App.4th at p. 369.)
After the jury was discharged in Trotter, but prior to sentencing, the prosecutor noted the discrepancy in the verdict forms and asked the court to modify them by interlineation, striking the word “armed,” and adding the words “personally used.” Over defense counsel’s objection, the court granted the prosecution’s motion and amended the verdicts. On appeal, the defendant asserted the trial court was without authority to amend the verdicts after discharge of the jury. The Trotter court disagreed and affirmed that portion of the judgment. (Trotter, supra, 7 Cal.App.4th at pp. 369, 371.)
The appellate court concluded the trial court did nothing more than correct clerical errors in the forms of verdict. The court did not modify the verdicts themselves. Clerical corrections to forms of verdict after a jury has been discharged have been upheld in federal court. The trial court was authorized to make clerical corrections to the verdict forms. The defendant nevertheless maintained the error was not clerical but an error by the trier of fact which could not be corrected by amendment. The appellate court noted the jury did not draft the forms of verdict. Moreover, the court did not revise any previous act of judicial discretion. Rather, the revision affected only the jury’s recordation of its verdict and not the actual verdict rendered. The incorrect wording was found in a preprinted verdict form given to the jury after they were properly instructed as to its use. The error in the form was inadvertent. The jury filled in the form as they were instructed to do, and the court pronounced judgment for personal use. The judgment itself was never revised and the appellate court concluded “[t]his was a textbook example of clerical error.” (Trotter, supra, 7 Cal.App.4th at p. 370.)
In the instant case, the court’s instructions to the jury and the prosecutor’s closing argument framed the issue in terms of whether appellant personally used a firearm during the commission of the robberies. Admittedly, the prosecution used the phrase “personally armed” during her argument. However, that portion of the argument did not suggest that the prosecutor was employing the words “personally armed” within the meaning of section 12022. Rather, the prosecutor used the term to demonstrate that appellant was armed with a weapon and displayed it in a menacing manner for purposes of proving the enhancement under section 12022.53, subdivision (b). At the September 8, 2006 sentencing hearing, the court, prosecution, and defense essentially assumed the jury’s finding on the firearm enhancement was a finding of personal use. In all likelihood, the court and counsel took that approach because the section 12022.53, subdivision (b) enhancement was the only firearm enhancement alleged as to counts 2 and 3 of the information. In fact, the court advised appellant he was facing the “10-year enhancement under 12022.53(b).” The defense did not object to the inaccurate forms of verdict or to the imposition of the 10-year term at sentencing. A failure to object to the form of the verdict cannot be raised for the first time on appeal. (People v. Jones (1997) 58 Cal.App.4th 693, 715.)
In our view, the discrepancy between the consolidated information and the forms of verdict must be deemed waived and the challenge to the section 12022.53, subdivision (b) terms must be rejected.
DISPOSITION
The judgment is affirmed.