Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10912
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted defendant Angelo Ross Wells of carjacking (Pen. Code, § 215, subd. (a); count one) and found that he personally used a firearm (§ 12022.53, subd. (b)) in the commission of the crime. It also convicted him of assault with a semiautomatic firearm (§ 245, subd. (b); count two) and found that he personally used a firearm (§ 12022.5, subds. (a), (d)) in the commission of the crime. Defendant was sentenced to state prison on count one for the low term of three years plus ten years for the enhancement. Sentence on count two was stayed pursuant to section 654.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) the evidence on both counts was insufficient, (2) the trial court erred by failing to instruct the jury sua sponte on the definition of “semiautomatic firearm,” and (3) his trial counsel rendered ineffective assistance. We shall affirm the judgment.
FACTS
Prosecution Case-in-Chief
On November 30, 2006, at about 5:00 p.m., 18-year-old Marilena Lopez and her 15-year-old friend, L.F., were at the residence of L.F.’s cousin in south Sacramento. The two left the residence and got into Lopez’s car to drive downtown. As they prepared to leave, L.F. saw a group of young men hanging around outside; the group included defendant, a young man named Michael, and another male whose name she did not know. L.F. knew defendant because she had been a cheerleader for his football team for several years. Before Lopez and L.F. departed, defendant and the other young men got into a white station wagon, a burgundy car, and a gray car. The three cars drove around a corner and parked.
Lopez and L.F. drove away from the cousin’s residence. L.F. saw the young men’s three cars begin to follow them. When the women reached an intersection, the traffic signal was red and they stopped behind several other cars. L.F. saw the burgundy car park at a tire store, and she saw the white station wagon park on the street next to the sidewalk. There were five people in the burgundy car, all of whom were wearing hooded sweatshirts.
While stopped at the intersection, L.F. saw defendant walking towards them from the direction of the white station wagon. The hood of his sweatshirt was on his head. L.F. had seen his face before he cinched down the hood; that was “how [she knew] it was him.”
While waiting for the light to turn green, Lopez got out of the car and went to the trunk to reconnect a speaker wire that had become disconnected. After fixing the wire, Lopez made her way back to the driver’s seat. At that point, she noticed a gray or burgundy car with five males whom she recognized. The males were wearing dark colored hooded sweatshirts and the car was parked in front of the tire store located at the intersection. Lopez became nervous when she saw one of the males start to put on the hood of his sweatshirt.
As she sat in the car, Lopez looked in her rearview mirror and saw defendant, whom she had seen on a previous occasion, walking behind the car. He was carrying a big black or chrome handgun and his sweatshirt hood was up. As he walked up to the driver’s side of the car, defendant cinched down the drawstrings of his hood in an effort to hide his face. Lopez heard L.F. yell, “oh, my God, I can’t believe you’re doing this, Angelo, I can’t believe you’re doing this.” Lopez looked to her left and saw defendant pointing what appeared to be a nine-millimeter or .45-caliber “automatic” handgun at her head. Defendant was cussing at Lopez and telling her to get out of the car. Lopez became nervous; she turned off the engine and defendant told her to turn it back on. Lopez and L.F. got out of the car, and defendant got in. He drove away, and the white station wagon drove off as well. Lopez and L.F. began walking back toward the cousin’s residence. On their way, they stopped at a residence and telephoned 911. When they resumed walking, they were followed by a silver car, a white station wagon, a burgundy Monte Carlo, and a 1980s-era Bronco or Blazer. The Monte Carlo was being driven by a young man who lived near L.F. Some of the people were the same ones who had been wearing hooded sweatshirts and had been in the car parked by the tire shop immediately prior to the carjacking.
Lopez testified she observed this in her driver’s side view mirror.
Police interviewed Lopez and L.F. at the cousin’s residence. During the interview, Lopez and L.F. saw someone drive Lopez’s car by the residence. The interviewing officer looked but did not see the car. He informed his dispatcher of the sighting.
On December 4, 2006, Lopez and L.F. were interviewed by Sacramento Police Detective Naff. In order to confirm that they were talking about the same person, Naff showed L.F. a picture of defendant. L.F. confirmed that the person in the picture was the same Angelo Wells who had committed the carjacking. Naff did not know that Lopez would be present at the cousin’s residence and had not prepared a photographic lineup to show her. After telling Lopez and L.F. not to discuss the case or L.F.’s identification of defendant, Detective Naff returned to the police department, created a photographic lineup, and then returned to the residence.
When he returned, Detective Naff spoke to Lopez by herself on the front porch. Before showing her the photographic lineup, he gave her the standard admonishments. Lopez then viewed the lineup and, after approximately one minute, she identified defendant as the person who committed the carjacking and assault.
The parties stipulated that: Lopez and L.F. told a patrol officer that there were approximately $1,500 worth of clothes in the car when defendant took it; L.F. was a cheerleader for a team called the Sacramento Raiders at the same time defendant was a player on the team; law enforcement officers found Lopez’s car on December 4, 2006; and no fingerprints were removed from the car.
Defense
Veronica Piazza, a deputy probation officer, testified that she interviewed Lopez and L.F. by telephone, in part to determine what amounts they may be entitled to as restitution. Lopez and L.F. reported that they had gone shopping shortly before the carjacking and that $1,500 worth of clothes were in the car when it was taken. During the interview, Piazza heard a female voice in the background say, “I told you you could get some money out of this.”
Sherri Green, the mother of defendant, testified that she was with her at her own mother’s house at the time of the carjacking. Green acknowledged that, shortly after the crimes, she had told Detective Naff that she did not arrive at her mother’s house until 5:30 or 5:45 p.m. on the day the crimes were committed.
Prissy Underwoods, the grandmother of defendant, testified that he arrived between 5:00 and 5:30 p.m. on the day the crime was committed. She acknowledged that she recalled defendant arriving at her home when she was almost done cooking dinner and that they ate dinner at 6:00 p.m.
Rebuttal
Detective Naff testified that he talked to Green on the telephone on December 7, 2006. Green told Detective Naff that she got to her mother’s house at around 5:30 to 5:45 p.m. on the day the crime was committed.
DISCUSSION
I
Defendant contends his carjacking and assault convictions must be reversed because there was insufficient evidence of his identity as the perpetrator of the crimes. We are not persuaded.
“‘To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.’” (People v. Carpenter (1997) 15 Cal.4th 312, 387, quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560].) This substantial evidence test applies where, as here, a challenge is made to the sufficiency of an out-of-court identification. (People v. Cuevas (1995) 12 Cal.4th 252, 275.)
“[T]he direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent ‘without resorting to inferences or deductions.’ [Citations.]” (People v. Cudjo (1993) 6 Cal.4th 585, 608-609; see Evid. Code, § 411; People v. Cuevas, supra, 12 Cal.4th at p. 262.)
Defendant claims that Lopez and L.F. were either lying or mistaken about their identifications of defendant, and that various inconsistencies in their testimony and the testimony of other witnesses made their identifications inherently incredible. He relies on the testimony of two witnesses in the second car behind Lopez’s car. The driver, Sabrina Norman, and her son and passenger, Terry Hilliard, both testified that the carjacker was five-feet-ten or eleven- inches tall. Hilliard believed defendant “couldn’t be” the carjacker because he is only “five six” and the carjacker “had to bend down in order to point the gun into the car.” Norman agreed that the carjacker “was taller” than defendant.
Defendant notes that unlike these two eyewitnesses, Lopez and L.F. both relied on car mirrors to view the perpetrator. But he does not claim that it is “physically impossible” to identify a person who has been viewed in that manner; at most, he infers or deduces that the identifications are entitled to less weight than the two that did not rely on mirrors. That is not enough. (People v. Cudjo, supra, 6 Cal.4th at p. 608.)
Defendant notes that of the four eyewitnesses, L.F. gave the description -- “five-seven, two hundred pounds,” which most closely matches him. He further notes that Lopez’s description, “[f]ive-nine to five-ten, slim build,” more nearly matches Hilliard’s and Norman’s description than it does L.F.’s description. From these facts, defendant infers or deduces that Lopez identified him in a photo lineup because she knows that L.F. “has identified a photograph as being [defendant] [citation], and all she has to do is pick out the right one when its [sic] her turn.” Because the argument depends upon inference or deduction and does not show physical impossibility, it fails under our standard of review. (People v. Cudjo, supra, 6 Cal.4th at p. 608.)
Defendant contends the evidence of identity was insufficient because the photographic lineup viewed by Lopez was unduly suggestive. Defendant claims he was “the only one” of the six who “has eyes that are a little slanted.” Our review of the array shows that defendant’s eyes are more nearly closed than the eyes of the other five subjects. However, absent evidence that the perpetrator’s eyes were noted to be similarly closed, the happenstance that defendant’s eyes were partially closed at the time the photograph was taken does not make the lineup unduly suggestive.
We consider defendant’s sufficiency of evidence claim even though he did not seek to exclude the lineup from evidence on the ground that it was unduly suggestive. (People v. Rodriguez (1998) 17 Cal.4th 253, 262 [sufficiency of evidence claim is forfeited only by failure to file timely notice of appeal].)
Contrary to defendant’s contention, neither his eyebrows nor his hair were unduly distinctive. Defendant’s eyebrows are similar to the subject in position six. His hair is similar to, albeit slightly longer than, the subjects in positions one and four. Nothing in the array tended to suggest that Lopez should select defendant. (See People v. Cunningham (2001) 25 Cal.4th 926, 990.) Defendant’s convictions are supported by substantial evidence. (People v. Carpenter, supra, 15 Cal.4th at p. 387.)
II
Defendant contends his assault conviction must be reversed because the trial court failed to instruct the jury sua sponte on the definition of “semiautomatic firearm.” We find no prejudicial error.
The punishment prescribed by section 245 varies according to, among other things, the instrumentality used in the assault. Thus, where a felony assault is committed with a firearm, the confinement range is two, three, or four years, whereas if the assault is committed with a semiautomatic firearm, the range is three, six, or nine years. (§ 245, subds. (a)(2), (b).)
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’” (People v. Wickersham (1982)32 Cal.3d 307, 323, disapproved on other grounds, People v. Barton (1995) 12 Cal.4th 186, 200-201.)
The Attorney General claims no definition of “semiautomatic firearm” was necessary for the jury’s understanding of the case (People v. Wickersham, supra, 32 Cal.3d at p. 323), because the term is “commonly understood by those familiar with the English language.” Defendant replies that, if the term were so commonly understood, it would not have been necessary for the Supreme Court to consult a specialty publication for a definition of the term. (In re Jorge M. (2000) 23 Cal.4th 866, 874-875, fn. 4 [“A semiautomatic firearm ‘fires once for each pull on the trigger and reloads automatically, but requires the shooter to release the trigger lever before another shot can be fired.’ (Walter, Rifles of the World (2d ed. 1998) p. 498)”].)
We shall assume for present purposes that the term “semiautomatic firearm” is not so commonly understood that a definition of the term was unnecessary. Indeed, following defendant’s trial, CALCRIM No. 875 was amended to include a definition of “semiautomatic firearm.” (See Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 875 [“A semiautomatic firearm extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger”].)
On its face, this definition of “semiautomatic firearm” seems broad enough to encompass a revolver. However, the CALCRIM authors may have intended a narrower reading.
Where instructional error removes consideration of an element of the offense, the reviewing court considers “whether it appears beyond a reasonable doubt that the error did not contribute to this jury’s verdict.” (People v. Flood (1998) 18 Cal.4th 470, 502-504; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) In this case, the error could not have contributed to the verdict because the only factual issue was whether the weapon was a revolver or some sort of “automatic” firearm; no evidence suggested that, although not a revolver, the firearm failed to extract at least one fired cartridge, or failed to chamber at least one fresh cartridge, with each single pull of the trigger.
L.F. testified that the gun “was a revolver.” Defendant does not contend that the jury needed to know the definition of “semiautomatic firearm” in order to reject L.F.’s testimony that the gun was a revolver.
Lopez, in contrast, testified that the firearm was “not a revolver” but was “an automatic.” She explained that “An automatic is just like one -- like you pull the trigger once, and it go [sic] like probably a few times.” To the extent Lopez’s testimony suggested the gun was an automatic, as opposed to a semiautomatic, it did not suggest that the firearm failed to extract at least one fired cartridge, or failed to chamber at least one fresh cartridge, with each single pull of the trigger. An instruction such as the 2008 version of CALCRIM No. 875 would not have allowed the jury to conclude that the weapon was not a semiautomatic firearm.
Defendant notes that the jury received a modified version of CALCRIM No. 875 that used the term “deadly weapon” where it should have used the word “firearm.” Thus, in two instances, the jury was orally instructed: “A deadly weapon is any object, instrument, or weapon, from which a projectile is discharged or expelled through a barrel by force of an explosion or other form of combustion.” The written instruction was identical.
The only deadly weapon at issue in this case was the one the carjacker used to assault Lopez and obtain her car. Defendant does not contend that this weapon somehow fell outside of the stated criteria. The mislabeling of the criteria with the broad term, “deadly weapon,” rather than the narrower term, “firearm,” could not have contributed to the verdict. (People v. Flood, supra, 18 Cal.4th at pp. 502-504.)
III
Defendant contends his trial counsel rendered ineffective assistance by failing to object to an unduly suggestive photographic lineup procedure and by failing to request a jury instruction defining “semiautomatic firearm.” Neither claim has merit.
“‘“[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citation.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” [Citation.]’” (People v. Avena (1996) 13 Cal.4th 394, 418.)
In part I, ante, we rejected defendant’s claim that the photographic lineup was unduly suggestive. His trial counsel was not required to proffer a futile objection to the lineup. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
In part II, ante, we assumed without deciding that the failure to define “semiautomatic firearm” was error. Similarly here, we “‘“need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” [Citation.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) For the reasons set forth in part II, the failure to define “semiautomatic firearm” was not prejudicial. There is no reasonable probability that, but for counsel’s failure to request the definition, the result of the proceeding would have been different. (People v. Avena, supra, 13 Cal.4th at p. 418.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.
The only authority for the provision states: “Semiautomatic firearm defined. Pen. Code, § 12126(e).” (Judicial Council of California Criminal Jury Instructions (2007-2008) p. 644.)
Section 12126, subdivision (e), in turn, states: “As used in this section, a ‘semiautomatic pistol’ means a pistol, as defined in subdivision (a) of Section 12001, the operating mode of which uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger.” This definition excludes a revolver, which uses the energy from a finger, rather than from an explosion, to rotate the cylinder and chamber fresh ammunition.
We thus consider whether defendant was prejudiced by the omission of an instruction, such as CALCRIM No. 875, which includes a semiautomatic pistol but excludes a revolver.