Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Affirmed as modified., Super.Ct.No. FSB704476
Wilson Adam Schooley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Joshua Jovan McDaniel walked up to a young couple who were sitting together in a parked car. He pretended to be an undercover police officer. He displayed a gun in his waistband; he threatened to shoot them if they did not cooperate. He rummaged around in the back seat of their car. Minutes later, the police found him a short distance away. The gun was found next to where he was sitting; it turned out to be a pellet gun. According to the owner of a purse that had been in the back seat, approximately $85 was missing from it. However, defendant had no money on him.
A jury found defendant not guilty of robbery, but guilty of the lesser included offense of attempted second degree robbery. (Pen. Code, §§ 211, 664, subd. (a).) It also found him guilty of false imprisonment by violence. (Pen. Code, §§ 236, 237, subd. (a).) In connection with both counts, it found that defendant personally used a deadly or dangerous weapon. (Pen. Code, § 12022, subd. (b)(1).)
The trial court then found that defendant had one prior robbery conviction, which was both a “strike” (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and a five-year prior serious felony enhancement (Pen. Code, § 667, subd. (a)(1)); it further found that defendant had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). It sentenced defendant to a total of 12 years in prison.
Defendant now contends:
1. The arresting officer gave expert testimony that that the pellet gun was a deadly or dangerous weapon, despite not being qualified to do so.
2. Because the arresting officer gave this testimony, the trial court should have instructed on the evaluation of expert opinion testimony. (E.g., Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 332.)
3. To the extent that trial counsel failed to preserve either of the two foregoing contentions, he rendered constitutionally ineffective assistance.
4. The imposition of separate and unstayed terms for both attempted robbery and false imprisonment violated Penal Code section 654, subdivision (a).
The People concede that, under Penal Code section 654, subdivision (a), the concurrent term imposed for attempted robbery should have been stayed. We agree. In addition, on our own motion, we have identified two minor errors in the sentence, which do not affect the total term. Otherwise, we find no prejudicial error. Accordingly, we will modify the judgment and affirm the judgment as thus modified.
I
THE TESTIMONY THAT THE PELLET GUN WAS A DANGEROUS WEAPON, AND THE FAILURE TO INSTRUCT REGARDING THAT TESTIMONY
Defendant raises three issues relating to the jury’s finding that the pellet gun was a deadly or dangerous weapon. First, he contends that the arresting officer, who testified that the pellet gun was a deadly or dangerous weapon, was not qualified to do so. Second, he contends that the trial court erroneously failed to instruct on expert opinion testimony. (E.g., CALCRIM No. 332.) Third, he contends that his counsel’s failure to raise either of these issues below constituted ineffective assistance.
A. The Arresting Officer’s Testimony.
1. Additional factual and procedural background.
Officer Carlos Rubio testified that he had been a patrol officer for 17 years. He then testified:
“Q... [B]ased on your background, training and experience, is that pellet gun a dangerous weapon?
“A Yes, it is.... [T]his gun could definitely put someone’s eye out. You could break skin with it. It could also be used as a club.”
Defense counsel did not object.
Officer Rubio also testified: “I don’t remember if there was any pellets in there. I remember, I’m pretty sure when I took the CO2 out of it, there was still pressure in it, but I don’t believe there was any pellets in there.” No pellets were found on defendant’s person.
In closing argument, the prosecutor stated: “You heard testimony from Officer Rubio talking about his expert opinion from his being a police officer for over seventeen years that, yes, this clearly is a dangerous weapon, that this clearly can cause damage. You can shoot someone’s eye out. You can hit them over the head. This is what guns were made to so. This is a dangerous weapon. It doesn’t get any more clear than that. Use your common sense.”
Defense counsel did not object. However, in his own closing argument, while he conceded that a pellet gun could pierce the skin or put out an eye, he questioned whether that was great bodily injury. He also argued that the pellet gun was not a dangerous weapon because it was not loaded.
2. Analysis.
As noted, defendant contends that Officer Rubio was not qualified to give expert testimony that the pellet gun was a deadly or dangerous weapon. Defense counsel forfeited this contention by failing to object to Officer Rubio’s testimony. (Evid. Code, § 353, subd. (a).) Defendant therefore argues that this failure to object constituted ineffective assistance.
“‘“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citation.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]”’ [Citation.]” (People v. Salcido (2008) 44 Cal.4th 93, 170.) “‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’ [Citations.]” (Id. at p. 172.)
This is not a case where there could be no reasonable explanation for defense counsel’s failure to object. For example, if he had objected, the prosecutor might have been able to present extensive evidence of Officer Rubio’s expertise, which would only have made his testimony more convincing.
Alternatively, assuming that Officer Rubio could not have qualified as an expert, even a nonexpert could properly testify, as he did, that a pellet gun could put out someone’s eye, break the skin, or be used as a club. Admittedly, a nonexpert could not necessarily testify to the ensuing conclusion that a pellet gun is a dangerous weapon. (See People v. Callahan (1999) 74 Cal.App.4th 356, 380 [“[w]here [a lay] witness can adequately describe his observations, his opinion or conclusion is inadmissible because it is not helpful to a clear understanding of his testimony”].) Still, the jury would necessarily have drawn that conclusion. After all, a pellet gun is a dangerous weapon as a matter of law. (In re Bartholomew D. (2005) 131 Cal.App.4th 317, 326; see also People v. Schaefer (1993) 18 Cal.App.4th 950, 951; People v. Montalvo (1981) 117 Cal.App.3d 790, 796-797; People v. Sherman (1967) 251 Cal.App.2d 849, 857.)
See A Christmas Story (1983) [“You’ll shoot your eye out”], available at , as of August 24, 2009.
Defendant argues that an unloaded pellet gun, as in this case, is not necessarily a dangerous weapon. That is incorrect. “A ‘true’ finding under [Penal Code] section 12022 does not require that the weapon necessarily operated. [Citation.]” (In re Bartholomew D., supra, 131 Cal.App.4th at p. 327; accord, People v. Sherman, supra, 251 Cal.App.2d at p. 856 [“it is not necessary to show that the gun could fire or was loaded”].) Defendant cites cases holding that a firearm that is neither loaded nor used as a bludgeon is not a deadly weapon. (E.g., People v. Brookins (1989) 215 Cal.App.3d 1297, 1307.) As the Supreme Court, however, has stated: “When loaded, a ‘gun is unquestionably a dangerous and deadly weapon’; [but] even when unloaded, it is at least a ‘dangerous weapon.’ [Citation.]” (In re Christopher R. (1993) 6 Cal.4th 86, 94, italics added.)
We therefore conclude that defendant has not established that defense counsel’s failure to object to Officer Rubio’s testimony that the pellet gun was a dangerous weapon constituted ineffective assistance.
Defendant has not argued that trial counsel’s failure to object to the prosecutor’s closing argument constituted ineffective assistance. We deem any such contention forfeited.
B. Failure to Instruct on Expert Opinion Testimony.
Defendant then argues that, in light of Officer Rubio’s testimony, the trial court should have given an instruction on expert opinion testimony, such as CALCRIM No. 332.
CALCRIM No. 332, as relevant here, provides: “(A witness was/Witnesses were) allowed to testify as [an] expert[s] and to give [an] opinion[s]. You must consider the opinion[s], but you are not required to accept (it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.” (CALCRIM No. 332 (2007-2008 ed.).)
When expert opinion testimony has been admitted, the trial court has a duty to give an instruction such as CALCRIM No. 332 sua sponte. (Pen. Code, § 1127b; People v. Reeder (1976) 65 Cal.App.3d 235, 241.) We may assume, without deciding, that Officer Rubio gave an expert opinion; certainly the prosecutor presented him as an expert, and, as we noted in part II.A, ante, he did draw a conclusion that a lay person would not be allowed to draw. On that assumption, the trial court was required to give CALCRIM No. 332, despite defense counsel’s failure to request it.
“... ‘“It is... the rule... that the erroneous failure to instruct the jury regarding the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given. [Citations.]”’ [Citations.]” (People v. Williams (1988) 45 Cal.3d 1268, 1320.) Here, once again, it was simply obvious that a pellet gun could be used to shoot out someone’s eye or as a bludgeon. Hence, the pellet gun was a dangerous weapon as a matter of law. We perceive no reasonable probability that, if CALCRIM No. 332 had been given, the jury would have found the personal weapon use enhancements not true.
For the same reason, defense counsel’s failure to request CALCRIM No. 332 has not been shown to be prejudicial and hence has not been shown to constitute ineffective assistance.
II
THE APPLICATION OF PENAL CODE SECTION 654
Defendant contends that the imposition of separate (albeit concurrent) terms for both attempted robbery and false imprisonment constituted multiple punishment in violation of Penal Code section 654, subdivision (a).
The People concede that this was error. We agree. There was no apparent intention behind the false imprisonment other than to effectuate the intended robbery. (People v. Beamon (1973) 8 Cal.3d 625, 639-640 [multiple punishment for kidnapping for robbery and robbery violated Pen. Code, § 654]; cf. People v. Foster (1988) 201 Cal.App.3d 20, 27-28 [multiple punishment for both false imprisonment and robbery was permissible when false imprisonment began after robbers had already obtained loot].) Accordingly, we will stay execution of the lesser term, for attempted robbery. (Pen. Code, § 654, subd. (a); In re Wright (1967) 65 Cal.2d 650, 655-656 & fn. 4.)
III
DISPOSITION
We have discovered two errors — one clerical and one substantive — affecting the sentencing minute order and the abstract of judgment.
First, on count 2 (false imprisonment), the principal term, the trial court sentenced defendant to four years (double the midterm). (Pen. Code, §§ 18, 237, subd. (a), 667, subd. (e)(1).) The sentencing minute order, however, incorrectly states that the term imposed on this count was nine years (though it does correctly state the total term).
Second, on count 1 (attempted second degree robbery), the trial court sentenced defendant to one year six months — i.e., half the midterm for a completed second degree robbery. This was consistent with the rule that the sentence for an attempt is half the sentence for the completed offense. (Pen. Code, §§ 213, subd. (a)(2), 664, subd. (a).) Attempted second degree robbery, however, is an express statutory exception to this rule; it has its own prescribed penalty. (Pen. Code, § 213, subd. (b).) Thus, the midterm for attempted second degree robbery is two years. (Pen. Code, §§ 18, 213, subd. (b); People v. Moody (2002) 96 Cal.App.4th 987, 990.) Moreover, this should have been doubled pursuant to the three strikes law. (Pen. Code, § 667, subd. (e)(1).) The correct term therefore is four years. Because this term must be stayed, the total sentence is not affected.
The judgment is modified by changing the term imposed for attempted second degree robbery to four years and by staying execution of this term, as well as the term imposed for the associated personal dangerous weapon use enhancement, said stay to become permanent upon defendant’s service of the remainder of his sentence. The judgment as thus modified is affirmed.
The trial court is directed to amend the sentencing minute order and the abstract of judgment and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
We concur: McKINSTER Acting P.J., KING J.