Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCS190587
APPEAL from a judgment of the Superior Court of San Diego County, Wesley R. Mason, Judge. Affirmed as modified.
BENKE, Acting P. J.
Juan Hernandez was convicted of kidnapping, assault with a firearm, vehicle taking, making a criminal threat and receiving stolen property. With regard to the kidnapping and assault with a firearm charges, it was found true he used a firearm within the meaning of Penal Code sections 12022.5, subdivision (a), and with regard to the kidnapping charge that he used a firearm within the meaning of section 12022.53, subdivision (b). Hernandez was sentenced to a prison term of 17 years. He appeals, arguing the trial court erred in denying his motion for new trial, in admitting expert testimony and in the manner it imposed sentence.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
On December 18, 2004, Tina Henson, driving her orange 2003 Honda Element, picked up her friend "Juana" and two people she did not know at a San Marcos theater. Henson stopped at a store to get cigarettes. When she came out, the car was gone. Juana later told Henson if she said anything about the theft, "they" would get her.
On December 26, 2004, Eva Sanchez was working at a Verizon telephone kiosk at the Chula Vista mall. Sanchez and a person named "Vicente" argued when Sanchez refused to give Vicente $150 for a phone he was attempting to return. One of Vicente's friends told Sanchez if she did not give them the money, they would call gang members to "jump" her. Vicente left and returned with persons Sanchez believed were gang members. Frightened, Sanchez talked by phone with appellant, her brother, and told him she was threatened.
On December 26, 2004, Victor Moreno was at the Chula Vista mall not far from the Verizon kiosk where Sanchez worked. Appellant came to the mall shortly after his conversation with his sister, Sanchez. Sanchez mistakenly identified Moreno to appellant as the man who threatened her. Appellant walked up to Moreno and told him they were going to take "a little walk" because they were "going to talk." Another man came up behind Moreno. The two men forced Moreno toward the mall exit, telling him they were "going to blast [him]."
Moreno resisted but was forced by appellant and the other man to the parking lot. The men forced Moreno toward an orange Honda Element later identified as the vehicle stolen from Henson. As they did so, each man drew a gun. When Moreno continued to resist, both men put their guns to Moreno's head. Moreno could feel the metal of the guns against his neck and head. As Moreno continued to resist, appellant's companion stated, "This is taking too much," pointed his gun at Moreno's chest and pulled the trigger twice. Moreno could hear metallic "clicks" but the gun did not fire. Appellant then attempted to shoot Moreno in the legs but his gun also did not fire. As appellant pulled the trigger of his gun, Moreno again heard two metallic clicks. As appellant attempted to "slide the bar on the top" of the gun and reload, Moreno fled.
As Moreno ran, "Criminal," another acquaintance of appellant and Sanchez, tried to stab Moreno with a knife. Moreno ran into a restaurant and the police were called.
On January 6, 2005, appellant was stopped by officers while he drove Henson's stolen automobile. The officers recognized appellant from a mall security camera as the person who assaulted Moreno. Appellant was arrested. In the van the officers found two .45 caliber pistol bullets. One of the bullets had marks on the primer consistent with having been impacted by a firing pin.
DISCUSSION
A. Motion for New Trial
Appellant moved for a new trial on several grounds, including that the evidence was insufficient to sustain the verdicts. Appellant argues that in rejecting that claim, the trial court applied the wrong standard of review and failed to conduct an independent review of the evidence.
1. Background
Appellant moved for a new trial on the ground the verdict was contrary to the evidence. (§ 1181, subd. (6).) In the written argument, appellant noted that in considering the basis for a new trial the court makes an independent review of the evidence and its weight. The prosecutor in his written opposition agreed.
The court denied the motion for new trial, stating: "Basically counsel's argument here that the evidence was insufficient to sustain a verdict or support a verdict was ruled on at trial. The totality of the evidence was essentially sufficient for the issue to go to the jury, and I believe that the -- there's nothing that I have heard that causes me to change my mind. [¶]Basically, the jury made the call based on the evidence they heard, the credibility of the witnesses, and I think it would be inappropriate at this time for the court to unilaterally disagree with them."
2. Discussion
Section 1181, subdivision (6), in relevant part provides: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial [¶] . . . [w]hen the verdict or finding is contrary to law or evidence."
In reviewing a motion for a new trial on this basis, the trial court must weigh the evidence independently. It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. The trial court should not disregard the verdict but instead should consider the proper weight to be accorded to the evidence and then decide whether, in its opinion, there is sufficient credible evidence to support the verdict. (People v. Davis (1995) 10 Cal.4th 463, 523-524; People v. Robarge (1953) 41 Cal. 2d 628, 633.)
This formulation of the trial court's task is not as clearly stated as it might be. In People v. Dickens (2005) 130 Cal.App.4th 1245, 1252, fn. 3, the court stated: "Our Supreme Court created a dilemma by stating on the one hand that the trial court must 'consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict,' and on the other that the court should not 'disregard the verdict' or 'decide what result it would have reached if the case had been tried without a jury.' [Citations.] It is conceptually difficult both to give deference to the jury's verdict and to independently determine whether the verdict is supported by sufficient credible evidence and overrule the verdict if it is not supported by such evidence. Nevertheless, Robarge and the other cases we have cited make it abundantly clear that a decision to grant a new trial on the basis of insufficient evidence is an abuse of discretion only if it is arbitrary or irrational, and that such a decision is not arbitrary or irrational if a reasonable trier of fact could have reached a result different from that reached by the jury."
In their written arguments, both parties correctly stated the trial court's duty under section 1181, subdivision (6), is to independently review the evidence. Given the, at least, nominally contradictory nature of the trial court's task as described in the case law, it is not surprising that trial courts often have difficulty in their extemporaneous rulings in clearly stating the test and in describing the review they have undertaken. Nonetheless, in this case, while the trial court states in its ruling that the evidence was sufficient to go to the jury, an irrelevant consideration under section 1191, subdivision (6), the court added that nothing it had heard changed its mind. Given that the trial court was informed of the correct test and given the presumption of correctness, we conclude the trial court's comments indicate that after its independent review it found the evidence sufficient.
B. Ineffective Assistance of Counsel
Appellant argues trial counsel provided ineffective assistance when he failed to object to opinion testimony from a police officer concerning whether appellant used a real firearm in his assault on Moreno. Specifically, appellant argues the officer's opinion, based on the description of the weapon used and appellant's behavior in using it, the weapon was a firearm was objectionable because it was an opinion that could as easily and intelligently be drawn by a juror as by the witness. Appellant contends, therefore, defense counsel was ineffective for not objecting on that basis.
1. Background
Appellant was charged with an assault with a firearm and kidnapping. Appended to the assault charge was an allegation he used a firearm within the meaning of section 12022.5, subdivision (a). That allegation was made as to the kidnapping charge, as well as an allegation he used a firearm within the meaning of section 12022.53, subdivision (b).
Section 12001, subdivision (b), defines a "firearm" as "any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion." The firearm need not be operable to support a finding of assault or a finding of use within the meaning of section 12022.5 or 12022.53. (People v. Bland (1995) 10 Cal.4th 991, 1005; see People v. Miceli (2002) 104 Cal.App.4th 256, 270.)
Because no weapon was discharged during the crime and no firearm was recovered, a factual issue existed concerning whether the object used by appellant and described by Moreno as a semi-automatic handgun was in fact a firearm or only a pellet gun or a toy or a replica.
Officer Mark Jones testified for the prosecution as an expert on firearms. Jones described the operation of a semi-automatic handgun and the various possible causes for such a gun misfiring. He stated it was not unusual for a gun to misfire.
The officer testified he examined the two rounds of ammunition taken from the stolen car appellant used in the kidnapping. He noted one of the bullets had marks on its primer that were consistent with the round having been struck by a firing pin.
The officer demonstrated and described the differences in appearance and operation between a firearm and a pellet pistol.
The officer was asked to consider Moreno's description of the object used by appellant, the bullets found in the car and the manner in which appellant used the object Moreno described as a gun. The officer was asked if he had an opinion concerning whether the object was a firearm.
The officer stated it appeared appellant was using a malfunctioning firearm. He based this conclusion on appellant's operation of the weapon and his behavior in apparently trying to "chamber a round" after gun had misfired.
Defense counsel objected there was a lack of foundation for the answer. Counsel argued the officer was not a behavioral scientist and could not properly offer an opinion on the nature of a weapon based on a person's reaction to firing a gun or to a gun misfiring.
The trial court agreed and the prosecutor laid an additional foundation. The officer testified that on more than 25 occasions he observed persons trying to shoot other persons or persons being shot at. He also stated he was a firearms instructor and taught officers how to deal with firearm malfunctions.
With that additional foundation, the officer was again asked his opinion concerning whether based on all the facts including appellant's behavior appellant used a firearm in assaulting Moreno. The officer stated there was nothing about the description of the weapon suggesting it was a pellet pistol. The officer stated that when a semi-automatic handgun misfires, the first thing a person attempts to do is clear any bad ammunition from the weapon and then try to fire it again. If the weapon was a pellet gun, there would be no reason to make the attempt. The officer concluded the weapon appellant used was a malfunctioning firearm.
2. Law
a. Expert Opinion
Expert opinion is admitted when a witness has special knowledge or experience, etc., and when the subject matter of that witness's opinion concerns a subject that is sufficiently beyond common experience that it would assist the trier of fact. (Evid. Code, § 801; People v. Chapple (2006) 138 Cal.App.4th 540, 547.) The decision to permit opinion testimony rests in the sound discretion of the trial court. (People v. Robinson (2005) 37 Cal.4th 592, 630; People v. Medina (1990) 51 Cal.3d 870, 887.)
b. Ineffective Assistance of Counsel
A criminal defendant is entitled to the effective assistance of counsel. It is the defendant's burden to demonstrate the inadequacy of trial counsel. A defendant must show both that the assistance given was deficient, that is, it fell below an objective standard of reasonableness under prevailing professional norms, and that it was prejudicial. Prejudice exists when it is reasonably probable that but for such deficient assistance the result of the proceeding would have been different. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
3. Discussion
It was established Officer Jones is an expert not only on firearms but on their use, how they malfunction, how their malfunctions can be dealt with and how a person's reaction in using an object may suggest it is a firearm. This special knowledge and experience would be helpful to a jury's task with deciding weather an object is a firearm. The officer's testimony was admissible.
We also note the evidence that the weapon used by appellant was a firearm was very strong and depended only in small part on the officer's expert opinion. Appellant went to the mall with friends to defend his sister and, clearly, to punish her tormentor. Appellant and his companion told Moreno he was going to be "blasted." When Moreno resisted his kidnapping, the men drew objects from under their shirts that appeared to be semi-automatic handguns. Given the gang-related circumstances of the various confrontations, it is reasonable to believe that, whatever their ultimate intent, appellant and his friends came armed with real guns and not toys, BB guns or replicas. When Moreno continued to resist, appellant's companion became angry at the delay, pointed his gun at Moreno's chest and pulled the trigger twice. The gun did not fire but Moreno heard two metallic clicks. Appellant then pointed his gun at Moreno's legs and pulled the trigger twice. Again, the gun did not fire and again Moreno heard two metallic clicks. It is hardly reasonable that appellant and his companion would have attempted to end the matter by clicking toy guns at a man they just kidnapped and clearly threatened to shoot.
Defense counsel did not provide ineffective assistance in failing to object to Jones's opinion testimony because it was admissible, and in any event even if that testimony was excluded, it is not reasonably probable there would have been a more favorable result for the defense.
C. Section 12022.5 Enhancement
Appellant notes the trial court imposed two firearm enhancements on count 1, a 10-year enhancement pursuant to section 12022.53, subdivision (b), and a 4-year enhancement pursuant to section 12022.5, subdivision (a). The trial court stayed the latter. Appellant argues that pursuant to section 12022.53, subdivision (f), merely staying the enhancement for the section 12022.5, subdivision (a), was error and it should properly be stricken.
Appellant is correct. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 712-713.) The abstract of judgment is ordered corrected to in indicate the section 12022.5, subdivision (a), finding as to count 1 is stricken.
The issue of the appropriate sentence for a trial court to impose where separate firearm enhancement allegations under section 12022.5 and section 12022.53 are found true is pending before our Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898.
D. Section 654
Appellant argues the trial court violated the prohibition against the double-punishment provision of section 654 when it imposed a sentence on his conviction for making a criminal threat.
Section 654 states an act punishable in different ways by different provisions of the Penal Code may be punished under only one such provision. The section, however, applies not only to a single act violating multiple provisions of the code but also to an indivisible course of conduct violating several statutes. Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant. If all the criminal acts were incident to one object, then punishment may be imposed only as to one of the offenses committed. (People v Beamon (1973) 8 Cal.3d 625, 636-637; People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
Appellant made a criminal threat when as he escorted Moreno from the mall and he stated they were going to "blast" him. Appellant argues the threat was made simply to facilitate Moreno's kidnapping and the plan to do him harm. It was, therefore, incidental to a single objective and imposition of punishment for the offense should be stayed.
The Attorney General argues appellant had two distinct objectives, the first to retaliate against Moreno and the second to spirit Moreno from the mall to avoid interference and apprehension.
Appellant had a single objective, i.e., to cause Moreno mental and eventually physical suffering for what appellant believed was Moreno's mistreatment of his sister. All of charged criminal acts were undertaken to accomplish that core intent. The trial court erred in imposing a term as to criminal threat conviction arising from count 5.
The abstract of judgment is ordered amended to show that imposition of sentence as to count 5 is stayed pursuant to section 654.
DISPOSITION
The abstract of judgment is ordered corrected to in indicate the section 12022.5, subdivision (a), finding as to count 1 is stricken and that imposition of sentence as to count 5 is stayed pursuant to section 654. In all other respects, the judgment is affirmed.
WE CONCUR:
HUFFMAN, J. HALLER, J.