Opinion
B231295
02-03-2012
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER SMITH, Defendant and Appellant.
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. MA044720
APPEAL from a judgment of the Superior Court of Los Angeles County. Christopher G. Estes, Judge. Affirmed.
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Christopher Smith was convicted, following a jury trial, of one count of kidnapping to commit robbery in violation of Penal Code section 209, subdivision (b)(1), one count of second degree robbery in violation of section 211 and one count of assault with a deadly weapon in violation of section 245, subdivision (a)(1). The jury found true the allegations that appellant used a deadly and dangerous weapon in the commission of the kidnapping and robbery within the meaning of section 12022, subdivision (b)(1). Appellant was sentenced to life in prison with the possibility of parole for the kidnapping conviction plus a one-year enhancement term for the section 12022 weapon allegation attached to that conviction plus a four year term for the assault conviction.
The trial court stayed the sentence for the robbery conviction and associated weapon enhancement pursuant to section 654.
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the assault with a deadly weapon conviction, and also contending that the trial court erred in failing to instruct the jury on the lesser included offense of simple assault. We affirm the judgment of conviction.
Facts
On January 25, 2009, Juan Bautista, a delivery man for Domino's Pizza, went to a house on Stable Drive in Palmdale to deliver pizza. He rang the doorbell of the house and identified himself. As the door slowly opened, four masked people approached Bautista from behind, holding objects which resembled guns. One of the guns was made of clear plastic. One of the individuals told Bautista to go into the house. He complied.
Inside the house, Bautista got on his knees. One or more of the individuals told him to remove everything from his pocket. He complied. One of the individuals asked Bautista if that was everything he had. He replied that it was. Bautista was shot in the face, head and shoulder with a BB gun. The shooters were about six feet away from him when they fired. After firing, the robbers fled, leaving Bautista alone in the house.
Bautista was able to go outside, borrow a cell phone and call his manager at Domino's. The manager called the police, who arrived quickly.
Bautista declined medical attention that night. A BB had lodged in his cheek, however, and had to be removed by a doctor several weeks later. The BB taken from his cheek appeared to be made of brown metal.
Los Angeles County Sheriff's Deputy Robin Soukup searched the house on Stable and found both copper and plastic BB's in the entrance area where Bautista said that he was shot and robbed. She also found a chair in an upstairs loft area by a window that overlooked the front of the house. Deputy Soukup also discovered a double-paned window that had BB's lodged in it. Apart from the chair, the house was empty.
Sheriff's deputies did a "reverse" on the phone number used to place the call to Domino's, and learned that the call had come from a house on Pisces Street that was adjacent to the vacant house on Stable where the robbery occurred. Deputy Soukup went to the Pisces house and spoke with Master Johnson, a 12 year old boy who lived there.
Deputy Soukup also searched a residence one or two houses north of the Johnson's house. She found a clear BB gun in the upstairs loft area. She also found copper BB's.
On January 26, 2009, Dexter Magcamit, the groundskeeper of the near-by Casablanca Apartments, found a black BB gun on the ground in the trash receptacle area of the apartments. It had what appeared to be a broken spring. Magcamit turned the gun over to Deputy Nicholas Breen.
On January 27, 2009, Deputy Luan Dang recovered a set of keys from the Casablanca Apartments. The keys belonged to Bautista. Deputy Dang also detained appellant, who had been identified as a suspect in the robbery.
After being advised of and waiving his Miranda rights, appellant told Deputy Dang that a girl named Butter ordered the pizza and that appellant and three individuals named Quayshawn, Tati and Master robbed the pizza delivery man. Appellant and Quayshawn had BB guns. They both fired their guns, but appellant's gun was not loaded. It had only carbon dioxide in it. Appellant and the other robbers then ran away toward the apartment complex and hopped over its back wall.
Appellant was later interviewed by Deputy India Inez. Appellant told the deputy that he had been living with Quayshawn and Tatiana Jenkins for the past two weeks, in the house that was searched by Deputy Soukup. The night of the robbery, appellant, Quayshawn and Tatiana went to a neighbor's house where Master Johnson and Destiny lived. Destiny and Quayshawn came up with the idea to rob a pizza delivery man. Destiny called and ordered pizza to be delivered to a vacant house across the street. Appellant, Quayshawn, Tatiana and Master went to the vacant house and robbed the pizza delivery man when he arrived. Quayshawn had a clear gun with an orange tip and red BB's inside. Appellant had a black BB gun. Appellant threw his gun over the fence of the Casablanca Apartments as he and the others fled.
Discussion
1. Sufficiency of the evidence
Appellant contends that there is insufficient evidence to prove that the pellet gun he carried was a deadly weapon, and so insufficient evidence to support his conviction for assault with a deadly weapon.
"'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.]'" (People v. Nelson (2011) 51 Cal.4th 198, 210.)
"As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) In determining whether an object has been used in such a manner as to be capable of producing death or great bodily injury, "the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (Id. at p. 1029.)
There is no dispute that some BB guns, when fully charged, can fire pellets with force which can cause great bodily injury and even death. (See People v. Lochtefeld (2000) 77 Cal.App.4th 533, 536-537 [discussing variety of BB guns].) Some of these guns are deadly weapons as a matter of law. (Id. at p. 535.) There are also BB guns, generally children's toy guns, which are less likely to cause any injury. (Id. at pp. 536-537.)
Appellant contends that the BB guns used in this case were not deadly weapons because they appeared to be toy guns and caused only minor injuries to the victim when fired at close range, and there was no testimony about the technical capabilities of the guns, such as their velocity. We do not agree.
Expert testimony about the capabilities of a fully charged and loaded BB gun may be offered to show that it is a weapon capable of causing death and great bodily injury, and may establish that a particular design of BB gun is a deadly weapon as a matter of law. (See People v. Lochtefeld, supra, 77 Cal.App.4th at pp. 535-537.) Such testimony is not a requirement, however. The deadly nature of the weapon may be shown by any relevant factor. (See People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) That is what occurred here.
One of the guns fired a metal BB which penetrated the victim's skin and lodged in his cheek. Had the BB hit the victim a little higher, it would have gone into his eye and lodged there. A BB in the eye would certainly cause serious injury. This is sufficient evidence to show that the BB gun was capable of producing great bodily injury, particularly when fired at a vulnerable area such as a face. In addition, there was evidence that BB's were found lodged in a window in the house, providing further proof that some of the BB's were expelled from the gun with great force.
An additional requirement for an assault with a deadly weapon conviction is that the weapon has the present ability to cause injury at the time of the assault, in this case that the gun was operable and loaded. (People v. Lochtefeld, supra, 77 Cal.App.4th at p. 541.)
Appellant told police that his gun was not loaded. He points out that the gun found in the trash had a broken spring. Thus, he concludes that he did not have the ability to inflict injury.
Assuming that the gun found in the trash was appellant's, the jury was not required to believe appellant's claim that the gun was broken at the time of the crime. Appellant told police that he threw his gun over a wall as he fled the scene. It is certainly possible that the gun became damaged as a result of the throw.
Similarly, the jury was not required to believe appellant's statement that his gun was not loaded with BB's. Appellant told police that he had a black BB gun and Quayshawn had a clear gun with red BB's in it. Appellant also said that he and Quayshawn fired their guns, but that appellant's gun expelled only carbon dioxide. The BB recovered from the victim's cheek was brown metal. Thus, it is more than reasonable to infer that appellant's gun fired the brown metal BB that lodged in the victim's cheek. This is sufficient evidence to show that appellant's gun had the present ability to cause injury.
2. Lesser included offense of assault
Appellant contends that the trial court erred in failing to instruct the jury on simple assault as a lesser included offense of assault with a deadly weapon. Assuming for the sake of argument that the trial court erred, we see no reasonable probability that appellant would have received a more favorable verdict.
Appellant contends that the jury might have found that the BB guns were not deadly weapons, and so convicted him of simple assault for the "minor" injuries inflicted by the BB's.
While the actual injuries suffered by the victim were not life-threatening, the injuries showed the capabilities of the gun. Further, the BB's were fired at the upper body and face of the victim, with the face being a particularly vulnerable area. As we discuss, ante, the metal BB that lodged in appellant's cheek could have caused serious injury if it had struck only a few inches higher, in the victim's eye. Thus, we see no reasonable probability that if the jury had been instructed on simple assault, it would have found that the BB guns were not deadly weapons and convicted appellant of simple assault.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J.
We concur:
TURNER, P. J.
MOSK, J.