Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County No. YA067384, James R. Brandlin, Judge.
Judy Gray Fridkis, under appointment by the Court of Appeal, for Defendant and Appellant Perris Jaquay Lee.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant Erik Doctauia James.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
A jury convicted defendants Perris Jaquay Lee (Lee) and Erik Doctauia James (James) of second degree robbery. As to Lee, the jury also found he personally used a firearm in the commission of the robbery. On appeal, Lee challenges the sufficiency of the evidence to support the firearm use enhancement. With respect to James, we have been asked to conduct an independent review of the record for error pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm the judgments of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants were each charged by information with one count of second degree robbery (Pen. Code, § 211; count 1), with a special allegation as to Lee that he had personally used a handgun in the commission of the robbery (§ 12022.53, subd. (b)), and as to James that a principal was armed with a firearm in the commission of the robbery (§ 12022, subd. (a)(1)). The information additionally charged James with possession of a firearm by a felon (§ 12021, subd. (a)(1); count 2) and unlawful firearm use by a misdemeanant (§ 12021, subd. (c)(1); count 3).
All further statutory references are to the Penal Code.
The trial court granted James’s motion to bifurcate trial on counts 2 and 3. Jury trial commenced the same day on count 1.
According to the trial evidence, on the afternoon of January 17, 2007, Mogar Telesca (Telesca) withdrew $10,000 from his bank, put the money inside an envelope and walked to his car. Telesca opened the driver’s door, sat down in his car and turned to place the envelope on the front passenger seat. When Telesca turned back to close the car door, Lee was standing in the doorway. As he leaned in, Lee demanded the money. Telesca began kicking Lee and yelling “No!” Lee then backed away, reached his right hand into the front pocket of his sweatshirt and pulled out a gun. At the sight of the gun, Telesca “went ballistic” and started kicking Lee more aggressively. One of his kicks landed on Lee’s right forearm, causing him to drop the gun. Telesca left his car and started fighting with Lee. During the struggle, Telesca kicked the gun away. The fight ended when Lee grabbed a cellular telephone, which was clipped to Telesca’s waist, and fled.
Yasminin Laddida (Laddida), a bank employee, was in the parking lot and saw Telesca sitting in his car, kicking Lee. In Lee’s right hand there appeared to be a gun, which Lee held away from his body, at about a 45-degree angle. Laddida returned to the bank to telephone police.
Luke Moskow (Moskow), another bank employee, arrived at work. James was in the parking lot, standing in front of Moskow’s car. James seemed to be nervously watching the nearby physical altercation between Lee and Telesca. Lee grabbed something from underneath his sweatshirt and then shouted at James, before the two of them fled in opposite directions.
Debra Harrington (Harrington), who was in her office near the bank, saw a man run past her window. He joined another man standing beside a grey Cougar car parked on the street. The two of them got into the Cougar and drove away. Earlier in the day, Harrington had watched the two men in the Cougar slowly drive through the parking lot before exiting to park on the street. Harrington’s suspicions were aroused when the two men backtracked on foot, and walked slowly past her office. She and another person drove by the Cougar and noted the license plate number.
When officers arrived, they retrieved the gun left by Lee in the parking lot. Harrington gave them the Cougar’s license plate number, which officers learned was registered to an address in Los Angeles. After further investigation, police arrested James and advised him of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), which James waived.
During the interview, James admitted culpability and implicated Lee. Specifically, James said Lee was a passenger in his Cougar when he drove the car through the bank parking lot, and he knew Lee wanted to commit a crime. James said that as he drove, he was looking for either potential victims or the police. James claimed to have attempted to distance himself from Lee and his actions by entering the bank alone. James insisted that after witnessing the altercation between Lee and Telesca, he drove off leaving Lee behind.
Following the People’s presentation of evidence, James moved for judgment of acquittal (§ 1118.1), which the trial court heard and denied.
Neither Lee nor James testified in his defense.
On the People’s motion, the trial court dismissed counts 2 and 3. The jury convicted Lee and James of count 1 and found true the sentencing enhancement alleged as to each defendant.
Prior to sentencing the trial court heard and denied James’s new trial motion. The court sentenced Lee to 13 years in state prison, consisting of the middle term of three years for robbery, plus 10 years for the section 12022.53, subdivision (b), enhancement. In sentencing James, the court selected the upper term of five years for robbery based upon his prior convictions and his probation status at the time of the January 17, 2007 robbery. James received an additional term of one year for the section 12022, subdivision (a)(1), enhancement.
The court ordered each defendant to pay a $20 security assessment and a $200 restitution fine. A parole revocation fine was imposed for each defendant and suspended pursuant to section 1202.45. Lee received presentence custody credit of 267 days (233 actual days and 34 days of conduct credit). James received presentence custody credit of 277 days (241 actual days and 36 days of conduct credit). These appeals followed.
DISCUSSION
A. Lee’s Challenge to the Sufficiency of Evidence
Lee contends the firearm use enhancement must be vacated for lack of sufficient evidence he used a firearm in connection with the robbery within the meaning of section 12022.53, subdivision (b). We disagree.
“The standard of appellate review for determining the sufficiency of the evidence is settled. ‘“On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’” [Citation.] ‘Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. [Citation.] We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 806.)
“[A]ny person who, in the commission of a felony specified in subdivision (a) [including section 211 (robbery)], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.” (§ 12022.53, subd. (b).)
“Proof of firearm use during a felony does not require a showing the defendant ever fired a weapon. ‘Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. “Use” means, among other things, “to carry out a purpose or action by means of,” to “make instrumental to an end or process,” and to “apply to advantage.” [Citation.] The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that “uses” be broadly construed.’ [Citation.].” (People v. Wilson, supra, 44 Cal.4th at pp. 806-807.)
Relying on People v. Hays (1983) 147 Cal.App.3d 534 (Hays), Lee argues there was insufficient evidence he did anything but “passively display” his gun. According to Lee, he produced the gun in response to being attacked, only to have it kicked out of his hand. While Lee may have intended to use the gun, he was prevented from doing so by Telesca.
In Hays, the defendant was convicted of robbery after he came crashing through an office roof with a rifle hung across his chest; and when he landed it was slung over his shoulder. A bookkeeper inside the office immediately fled in fear. (Hays, supra, 147 Cal.App.3d at pp. 539, 544.) The Court of Appeal, after exhaustively reviewing prior case law, concluded there was insufficient evidence of gun use to justify an enhancement under section 12022.5, subdivision (a) because “a bare potential for use will not support a use enhancement . . . .” (Id. at pp. 544-549.) During the robbery, the defendant never shot or struck anyone with the rifle; nor did he hold the rifle in his hands or display it in a menacing manner.
Section 12022.5, subdivision (a), provides: “[A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”
Similarly, we found in Alvarado v. Superior Court (2007) 146 Cal.App.4th 993 (Alvarado),there was no evidence to show any conduct by the defendant to suggest he employed the gun as an aid to commit burglary under section 12022.5, subdivision (a). In Alvarado, the defendant entered a market and spoke with the clerk, with whom he was acquainted. He then asked the clerk to telephone police so he could commit “‘suicide by cop.’” The clerk noticed there was a shotgun lying on top of a candy rack and was pointed towards a wall. The defendant, who was standing near the shotgun, rested his hand on or near the shotgun. However, he never picked up the shotgun or otherwise called attention to it. (Id. at pp. 996-998.) In holding this evidence was insufficient to constitute the defendant’s use of the shotgun, we determined, “[a]s in Hays, [the defendant’s] acts indisputably showed he was ‘armed.’ However, the transcript of the preliminary hearing contains no evidence of gun-related conduct beyond passive exposure of the gun. There is no evidence to suggest, or from which to infer, he employed the gun ‘at least as an aid’ in the commission of the burglary. In these circumstances the personal use of a firearm enhancement allegation cannot stand.” (Alvarado, supra, at p. 1005, italics and fn. omitted.)
In contrast to Hays and Alvarado, the evidence amply supports the firearm use enhancement in the present case. The record shows Lee initially relied on his physical presence and repeated demands to force Telesca to part with his money. However, that proved unsuccessful when Telesca not only refused to surrender his money, but also attacked Lee. Lee’s response was to step back from Telesca and reach into his sweatshirt pocket to retrieve his gun. Based on the testimony of Telesca and Laddida, the jury reasonably inferred that Lee decided to employ the gun in some way to overcome Telesca’s resistance, and was therefore using the gun to facilitate the robbery. “‘Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure.’” (Wilson, supra, 44 Cal.4th at p. 807.)
B. James’s Request for Independent Review
After examination of the record, James’s appointed counsel filed an opening brief in which no issues were raised. On April 18, 2008, we advised James he had 30 days within which to personally submit any contentions or issues he wished us to consider. We have received no response to date.
We have examined the entire record and are satisfied James’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgments are affirmed.
We concur: PERLUSS, P. J. WOODS, J.