Opinion
D071895
03-20-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID A. CARTER, Defendant and Appellant.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD267687) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted David A. Carter of robbery (Pen. Code, § 211) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). For both convictions, the jury found true allegations Carter personally used a firearm (Pen. Code, § 12022.5, subd. (a)) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). For the robbery conviction, the jury also found true allegations Carter personally and intentionally used a firearm (Pen. Code, § 12022.53, subd. (b)). For the assault with a deadly weapon conviction, the jury also found true allegations Carter personally used a dangerous and deadly weapon (Pen. Code, § 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (Pen. Code, § 1192.7, subd. (c)(8)). Additionally, Carter admitted having a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), a prior strike conviction (Pen. Code, §§ 667, subd. (b)-(i), 1170.12), and a prior prison commitment conviction (Pen. Code, § 667.5, subd. (b)).
The court sentenced Carter to an aggregate term of 22 years in prison. The sentence included a consecutive 10-year prison term for the firearm enhancement under Penal Code section 12022.53, subdivision (b).
The court stayed imposition of the sentences for the other firearm enhancements under Penal Code section 654.
Carter appeals, contending the court prejudicially erred and violated his due process rights by failing to grant his motion for judgment of acquittal as to the substantive offenses because the fingerprint evidence was insufficient by itself to sustain his convictions. He similarly contends the court prejudicially erred and violated his due process rights by denying his motion for judgment of acquittal as to the personal firearm use allegations because there was insufficient evidence the weapon used against the victim was a firearm within the meaning of Penal Code sections 12022.5 and 12022.53.
Finally, while this appeal was pending, the Legislature added a provision to Penal Code section 12022.53 allowing the court, at the time of sentencing, to dismiss a firearm enhancement under this section in the interest of justice. (Pen. Code, § 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) Carter contends the provision applies retroactively to him because the provision is ameliorative and this case is not final. Consequently, he contends we must remand the matter to allow the court an opportunity to exercise its discretion under this section.
We conclude the court did not abuse its discretion in denying the motion for judgment of acquittal because there was sufficient evidence to sustain convictions for the substantive offenses and true findings for the personal firearm use enhancements. We further conclude newly enacted Penal Code section 12022.53, subdivision (h), applies retroactively to this case because the statute is ameliorative and this case is not final. We, therefore, reverse the sentence imposed for the Penal Code section 12022.53, subdivision (b), firearm enhancement and remand the matter to allow the court an opportunity to exercise its newly acquired discretion to decide whether it is in the interest of justice to strike or dismiss the enhancement for sentencing purposes. In all other respects, we affirm the judgment.
II
BACKGROUND
The victim worked as a ride share service driver. One day, while the victim was on a break sitting in the passenger seat of his car, a man pushed down on the driver's side of the car's hood, capturing the victim's attention. The victim was scared and tried to lock the car doors, but he accidentally rolled down the car windows instead.
A second man appeared, reached in through the window, grabbed the victim, and started pulling the victim toward the window. The first man came around to the window and helped the second man. Each man used one hand to hold a gun and one hand to pull the victim out of the window. The first man held his gun within two feet of the victim's face. The gun was a silver revolver with a short barrel.
The first man told the victim, "This is for real. We want your stuff. We want your money." The men struck the victim with their guns. Although the victim knew without question the guns were metal, he did not think they were real and he resisted. The first man struck the victim again, causing the victim's head to bleed and the vision in the victim's left eye to blur.
The victim asked the men to stop, took out his wallet, and opened it. The victim told the men, "I don't have anything. You're going to kill me for nothing." The first man said, "We're not going to kill you, man." Then, he took the $20 that was inside the wallet and the two men left.
The victim immediately called 911. The victim told one of the responding police officers that, while he was not sure the firearms were real, they felt like metal when they struck him. The victim also said he would not be able to identify the men, but he described the first man as a young, heavyset, African-American who was between five feet eight inches and five feet 10 inches tall and weighed over 200 pounds.
Another one of the responding officers observed three fingerprints on the car's hood where the first man pushed down on it. The fingerprints appeared to be fresh as the car was extremely clean with a very thin, uniform layer of pollen-like dust everywhere except where the three fingerprints were. Two of three fingerprints matched Carter's fingerprints. The third fingerprint was not of sufficient quality to be analyzed. Carter is an African-American male, who is approximately six feet tall and weighs approximately 160 pounds.
A police detective subsequently interviewed Carter. Carter denied any involvement in the robbery. He also denied ever being in the area where the robbery occurred. Nonetheless, he unwittingly admitted knowing the robbery involved a car even though the police detective had not previously shared that detail with Carter.
III
DISCUSSION
A
1
After the prosecution rested its case, Carter's counsel moved for a judgment of acquittal under Penal Code section 1118.1. She argued there was insufficient evidence to sustain a conviction for either robbery or the assault with a deadly weapon because the victim's description of the first man did not match Carter's description. She further argued there was insufficient evidence to sustain true findings for the attendant firearm use enhancements because the victim did not believe the firearms were real. The court denied the motion, finding there was sufficient evidence to sustain convictions based on the fingerprint evidence and there was sufficient evidence to sustain true findings on the enhancements based on the victim's testimony the gun was a revolver and was made of metal.
2
Carter contends the court prejudicially erred and violated his constitutional rights by failing to grant his motion as to the substantive offenses because the fingerprint evidence was insufficient by itself to support his convictions. In reviewing this contention, "we ask whether 'there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged.' " (People v. Watkins (2012) 55 Cal.4th 999, 1019 (Watkins).)
"In assessing such a claim, we review the record 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] 'The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Watkins, supra, 55 Cal.4th at p. 1019-1020.)
" 'The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] " 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " ' " (Watkins, supra, 55 Cal.4th at p. 1020, italics omitted.)
Here, Carter's fingerprints were found on the hood of the victim's car where the first man pushed it to get the victim's attention. Fingerprints are strong evidence of identity and are ordinarily sufficient by themselves to identify a perpetrator. (People v. Tuggle (2012) 203 Cal.App.4th 1071, 1076, citing People v. Johnson (1988) 47 Cal.3d 576, 601; People v. Figueroa (1992) 2 Cal.App.4th 1584, 1588; People v. Preciado (1991) 233 Cal.App.3d 1244, 1246.) Bolstering the fingerprint evidence was Carter's knowledge during the police interview that the robbery involved a car, even though the police detective conducting the interview had not mentioned or alluded to that fact. A rational trier of fact can reasonably conclude from this evidence Carter was the first of the two men who robbed and assaulted the victim.
Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 (Mikes), on which Carter relies, is distinguishable. In Mikes, the Ninth Circuit held fingerprint evidence was not sufficient to sustain a conviction where there was no associated evidence from which a trier of fact could reasonably infer the fingerprints were impressed at the time of the crime and not some earlier time. (Id. at p. 359.) In this case, there is such associated evidence: (1) the victim's testimony that the fingerprints were in the location where the first man pushed down on the victim's car to get the victim's attention; and (2) Carter's slip during his interview with the police detective indicating his knowledge of the robbery. Accordingly, we conclude Carter has not established the court erred in denying his motion for judgment of acquittal as the substantive offenses.
B
Carter similarly contends the court prejudicially erred and violated his due process rights by denying his motion as to the firearm enhancements allegations because there was insufficient evidence the weapon used against the victim was a firearm within the meaning of Penal Code sections 12022.5 and 12022.53. In considering this contention, we apply the same standard of review discussed above.
"The fact that an object used by a robber was a 'firearm' can be established by direct or circumstantial evidence. [Citations.] [¶] Most often, circumstantial evidence alone is used to prove the object was a firearm. This is so because when faced with what appears to be a gun, displayed with an explicit or implicit threat to use it, few victims have the composure and opportunity to closely examine the object; and in any event, victims often lack expertise to tell whether it is a real firearm or an imitation. And since the use of what appears to be a gun is such an effective way to persuade a person to part with personal property without the robber being caught in the act or soon thereafter, the object itself is usually not recovered by investigating officers. [¶] Circumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm." (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435-1436 (Monjaras); accord, People v. Law (2011) 195 Cal.App.4th 976, 983 (Law).)
Here, Carter displayed a metal revolver and told the victim the robbery was "for real." When "a defendant commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm." (Monjaras, supra, 164 Cal.App.4th at p. 1437; accord, Law, supra, 195 Cal.App.4th at p. 983.)
Although the victim was not certain whether the gun was real or fake, "[t]he jury was not required to give defendant the benefit of the victim's inability to say conclusively the pistol was a real firearm. ... [J]urors 'may draw an inference from the circumstances surrounding the robbery that the gun was not a toy.' " (Monjaras, supra, 164 Cal.App.4th at pp. 1436-1437.) As the circumstances surrounding the robbery in this case support an inference the gun used by Carter was real, Carter has not established the court erred in denying his motion for judgment of acquittal as to the firearm enhancements.
C
While this case was pending, an amendment to Penal Code section 12022.53 took effect. The amendment provided: "The court may, in the interest of justice pursuant to [Penal Code] Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Pen. Code, § 12022.53, subd. (h).)
Carter contends the amendment applies retroactively to cases, such as this one, that were not final when the amendment took effect and, consequently, he contends we must remand the matter to the trial court to allow the court an opportunity to exercise its discretion under the amendment. The Attorney General, who represents the People on appeal, concedes the issue. The district attorney, who represented the People below, filed an amicus brief arguing the amendment only applies prospectively to cases originating after the amendments became effective. We agree with Carter and the Attorney General.
" 'The Legislature ordinarily makes laws that will apply to events that will occur in the future. Accordingly, there is a presumption that laws apply prospectively rather than retroactively.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara); see Pen. Code, § 3 ["No part of [the Penal Code] is retroactive, unless expressly so declared"].)
However, " '[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.' " (Lara, supra, 4 Cal.5th at p. 307, quoting In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) " 'The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' " (Lara, at p. 308.)
Among the circumstances in which the Estrada rule applies is when, as here, a legislative amendment " 'vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty.' " (Lara, supra, 4 Cal.5th at p. 308, quoting People v. Francis (1969) 71 Cal.2d 66, 76.) This is because the Legislature inferably " 'has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances.' " (Lara, at p. 308, quoting People v. Francis (1969) 71 Cal.2d 66, 76.)
As Penal Code section 12022.53, subdivision (h), falls within the Estrada rule and as Carter's sentence is not yet final, we will remand the matter to the trial court to allow the court an opportunity to exercise its newly acquired discretion under this section to decide whether it is in the interest of justice to strike or dismiss the enhancement for sentencing purposes.
IV
DISPOSITION
The sentence for the firearm enhancement imposed under Penal Code section 12022.53, subdivision (b), is reversed. The matter is remanded to allow the trial court an opportunity to exercise its newly acquired discretion under Penal Code section 12022.53, subdivision (h), to decide whether it is in the interest of justice to strike or dismiss the enhancement for sentencing purposes. In all other respects, the judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: BENKE, J. IRION, J.