Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF188670, James W. Hollman, Judge.
Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
Appellant Cornelio Vedolla Espinoza contends his convictions must be overturned because of flawed pretrial identification procedures. He also claims his convictions for assault with a semiautomatic firearm, being a felon in possession of a firearm, and making criminal threats must be reversed because of insufficiency of the evidence. In a supplemental brief, Espinoza contends the enhancement for personal use of a firearm must be stricken because of an inconsistency between the information and the verdict form. We will (1) modify the count 2 assault with a semiautomatic firearm verdict to reflect a conviction for violating Penal Code section 245, subdivision (a)(2), assault with a firearm, (2) modify the firearm enhancement appended to count 2 to reflect a true finding pursuant to section 12022.5, subdivision (a), and (3) remand for resentencing. In all other respects, we will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
Alejandro Gil wanted to sell his car, a black Ford Mustang, so he placed a “For Sale” sign in its window and parked it in a lot on Olive Street in Porterville. Gil received a telephone call from Espinoza who indicated he was interested in purchasing the car. Espinoza made arrangements to meet at Gil’s home so he could test drive the vehicle.
The afternoon of March 3, 2007, Espinoza arrived at Gil’s home and the two men walked to the lot where the car was parked. Espinoza climbed into the driver’s seat and Gil sat in the passenger’s seat. Espinoza drove for several minutes, arriving at the outskirts of town. At that point, Espinoza pulled a chrome gun from his pocket, moved his hand back on the gun in a ratcheting motion, and pointed the gun at Gil. Espinoza ordered Gil out of the car, telling Gil to run or be killed. Gil was afraid Espinoza would kill him, so he ran. After getting away from Espinoza, Gil called the police.
On August 9, 2007, Espinoza and his girlfriend went to the local California Highway Patrol (CHP) office to obtain information regarding a car accident. The CHP ran a check of the vehicle identification number (VIN) and license plate of the car Espinoza was driving, a Ford Mustang. The VIN listed for the license plate did not match the VIN on the dash of the Mustang. The CHP also noticed that while the exterior of the Mustang was red, the interior of the vehicle and the area near the rear license plate were black.
Sheriff’s Deputy Genaro Pinon arrived at the CHP office to interview Espinoza. Espinoza claimed his cousin had given him the car. Initially, Espinoza stated he did not know why the VIN and license plate did not match. He then changed his story and stated he had swapped license plates with another vehicle.
During the course of the interview, Pinon received a telephone call from Gil. Pinon left Espinoza at the CHP office and went to pick up Gil for a field lineup. Gil was riding in the back of Pinon’s vehicle when they returned to the CHP office. As Pinon drove into the parking lot, and before Pinon could direct his attention, Gil spotted and identified Espinoza as the man who had stolen his car.
After Gil identified Espinoza, Pinon again interviewed Espinoza. Espinoza denied any involvement in a carjacking and blamed his cousin. As Pinon was handcuffing Espinoza, Espinoza remarked, “Okay, okay, I’ll tell you the truth.” Espinoza confessed he had stolen the car, described specific details about the crime, and claimed the gun he had pointed at Gil was a fake. No gun, real or fake, was recovered.
Espinoza was charged in count 1 with carjacking (§ 215, subd. (a)); count 2, assault with a semiautomatic firearm (§ 245, subd. (b)); count 3, making criminal threats (§ 422); and count 4, felon in possession of a firearm (§ 12021, subd. (a)(1)). It was further alleged as to all counts that Espinoza had suffered a prior strike conviction. As to counts 1 through 3, firearm and prior serious felony enhancements were alleged.
Espinoza presented an alibi defense at trial, claiming that he had been with his brother and girlfriend at the time of the carjacking. Espinoza also claimed that he confessed to the crime only because he could hear his girlfriend crying and he was afraid Pinon would arrest her.
The jury convicted Espinoza of all counts and returned true findings on the firearm enhancements. Espinoza waived a jury trial on the prior conviction allegation and the trial court found it to be true as to all counts.
Espinoza moved for a new trial on the grounds of juror misconduct. The motion was denied. On July 25, 2008, Espinoza was sentenced to a term of 25 years in state prison.
DISCUSSION
Espinoza contends that the pretrial identification procedures used were procedurally flawed and therefore the in-court identification also was flawed. Espinoza further argues his convictions for assault with a semiautomatic weapon and being a felon in possession of a firearm must be reversed because the evidence failed to establish that he had a semiautomatic or any real, as opposed to a fake, weapon. He further contends that his criminal threat conviction must be reversed for insufficient evidence in that there was no “imminent prospect of execution” because he told the victim to run or else be killed, and the victim chose to run.
I. Challenge to Identification Procedures
Gil first identified Espinoza as the perpetrator when officers brought Gil to the CHP office for a field lineup. Officers had told Gil that his car had been found and the officers wanted Gil to identify the person found driving his car. As soon as the officer drove into the CHP parking lot, with Gil riding in the back seat, Gil pointed at Espinoza and said, “That’s him.” Gil identified Espinoza before the officer had an opportunity to direct Gil’s attention to Espinoza. Gil later identified Espinoza in court as his assailant.
Espinoza maintains that the field lineup procedure was unreliable and impermissibly suggestive. He also contends the circumstances under which Gil identified him were so suggestive as to taint the in-court identification. At no time, however, did Espinoza ever challenge the identification procedures in the trial court. When a defendant fails to object to identification procedures in the trial court, he or she is barred from raising the issue on appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 989.) Having failed to challenge the identification procedures in the trial court, Espinoza is barred from challenging them on appeal. (Ibid.)
Anticipating a future claim by Espinoza that his counsel was ineffective, we conclude any error in failing to raise the issue was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Espinoza was driving the stolen car and confessed to the crime. His confession corroborated several details of the crime when questioned by officers, including the route driven, and the expression on Gil’s face when confronted with a gun. Thus, any failure by Espinoza’s counsel did not prejudice him.
II. Evidence of Assault with a Semiautomatic Firearm
Espinoza claims the evidence was insufficient to establish that he used a semiautomatic firearm. He also contends the trial court did not instruct the jury on the elements of a section 245, subdivision (b) offense. He is correct.
Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 875, revised June 2007, is the standard instruction used for instructing a jury on section 245, subdivisions (a) and (b). That instruction contains a definition of “firearm” and a separate definition of “semiautomatic firearm.” Depending upon the evidence and theory of the case, different bracketed provisions of the instruction are to be given.
We reject the People’s contention that “semiautomatic firearm” is a term of common meaning needing no definition. (See People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023.) Clearly, the term has a technical meaning requiring definition, which is why CALCRIM No. 875 includes such a definition. (See In re Jorge M. (2000) 23 Cal.4th 866, 874-875, fn. 4.) The trial court, however, failed to define “semiautomatic firearm” or include the language necessary to instruct on the offense of assault with a semiautomatic firearm. Instead, the trial court defined “firearm” and instructed only on the section 245, subdivision (a) offense of assault with a firearm.
Furthermore, even if the jury had been instructed properly on the section 245, subdivision (b) offense of assault with a semiautomatic weapon, there was insufficient evidence to support a conviction for this offense.
In reviewing the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) This court reviews “the whole 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
In assessing a sufficiency of the evidence claim, we presume in support of the judgment the existence of every fact the trier reasonably could have deduced from the evidence and draw all reasonable inferences in support of the judgment. (People v. Rayford (1994) 9 Cal.4th 1, 23 (Rayford).) A judgment should not be reversed on this ground unless it appears that under no hypothesis is the evidence sufficient to support the conviction. (People v. Sanchez (2003) 113 Cal.App.4th 325, 329 (Sanchez).)
Gil testified that during the carjacking Espinoza pulled out a “chromed” gun and pointed it at him. When Gil asked Espinoza to calm down, Espinoza responded by moving his hand back on the gun and telling Gil to run or else be killed. Under questioning from the prosecutor, Gil demonstrated the motion. At the prosecutor’s request, the trial court noted for the record that the motion demonstrated by Gil was “ratcheting.”
The jury reasonably could have inferred from this testimony that Espinoza used a weapon that required a ratcheting motion to place a live round in the firing chamber, as the People maintain. Nowhere in the record, however, is there any testimony that established for the jury that the hand motion described by Gil occurs when a person chambers a live round in a semiautomatic firearm, as opposed to cocking a firearm. The relevance of the hand motion and the distinction between a semiautomatic firearm and a firearm is a matter that should have been the subject of testimony by someone knowledgeable in firearms.
The evidence established that Espinoza used a firearm. The evidence, however, did not establish that Espinoza used a semiautomatic firearm. We note that the prosecutor did not even argue to the jury that Espinoza used a semiautomatic firearm. The prosecutor referred to the offense as “assault with a firearm.”
As for Espinoza’s contention that the conviction cannot be sustained because the weapon was a fake, we disagree. The jury was not required to credit Espinoza’s self-serving statement that the weapon used in the carjacking was a fake gun. Furthermore, at the time of the carjacking, Espinoza certainly acted as though the firearm was a real working firearm, and the jurors may have inferred from the circumstances and Espinoza’s own conduct that the weapon was a firearm designed to be shot and capable of being fired. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436-1437 (Monjaras).)
There was no substantial evidence that Espinoza used a semiautomatic firearm. (Sanchez, supra, 113 Cal.App.4th at p. 329.) There was, however, substantial evidence that Espinoza used a firearm within the meaning of section 245, subdivision (a)(2), the offense addressed in the jury instruction. The section 245, subdivision (a)(2) offense is a lesser included offense of section 245, subdivision (b) because the greater offense cannot be committed without also committing the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117; People v. Miceli (2002) 104 Cal.App.4th 256, 271-272).
The jury was instructed on the section 245, subdivision (a)(2) offense prior to returning its verdict. Therefore, we will direct that the section 245, subdivision (b) conviction be stricken and that the judgment be modified to reflect a conviction for assault with a firearm under section 245, subdivision (a)(2). (§ 1181, subd. 6; People v. Bechler (1998) 61 Cal.App.4th 373, 378.)
III. Evidence of Felon in Possession of a Firearm
In a related argument, Espinoza contends the evidence was insufficient to support the conviction for being a felon in possession of a firearm. He argues the evidence was insufficient because no gun was recovered, the gun was fake, and Gil’s limited testimony on the characteristics of the gun was insufficient. He is mistaken.
Although we concluded in Part II, ante, that the evidence was insufficient to support a conviction for assault with a semiautomatic weapon, we imposed a conviction for the lesser included offense of assault with a firearm because the evidence was sufficient to establish that offense. Thus, we already have concluded the evidence was sufficient to establish that Espinoza used a firearm to assault Gil.
In order to sustain a conviction for being a felon in possession of a firearm, it must be shown that the defendant had a prior felony conviction, was in possession of a firearm, and knew that he possessed a firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) The prosecution also must prove the firearm was designed to be shot and appeared capable of being fired. (People v. Hamilton (1998) 61 Cal.App.4th 149, 153 (Hamilton).)
Here, Gil testified that Espinoza pulled out a chrome gun and pointed it at him. Gil also testified that Espinoza moved his hand over the gun in what was determined to be a ratcheting motion. This evidence established that Espinoza was in possession of a firearm that was designed to be shot and appeared capable of being fired. (Hamilton, supra, 61 Cal.App.4th at p. 153.) There is no dispute as to the presence of the other elements of the offense.
That no gun was recovered is irrelevant. The testimony of a single witness, in this case, Gil, is sufficient to support a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
Additionally, as noted in Part II, ante, Espinoza’s claim that the gun was a fake does not warrant reversal. The jury was not required to credit this self-serving comment and an appellate court does not reweigh the evidence. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) The jurors were permitted to infer from the circumstances and Espinoza’s own conduct that the weapon was a firearm designed to be shot and capable of being fired. (Monjaras, supra, 164 Cal.App.4th at pp. 1436-1437.)
IV. Evidence of Criminal Threats
The elements of a violation of section 422 are (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) the threat was made with the intent that it be taken seriously; (3) under the circumstances in which the threat was made, it conveyed a gravity of purpose and an immediate prospect of execution of the threat; (4) the person threatened was in sustained fear for his safety; and (5) the threatened person’s fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Espinoza contends the evidence was insufficient to support his conviction for making a criminal threat because his statement to Gil to run or he would be shot did not convey an imminent prospect of execution in that Gil chose to exercise his option to run. We disagree.
Frankly, we can think of no more perfect example of this offense than what occurred here.
Espinoza drove Gil to the outskirts of town, pulled out a gun, and pointed the gun at Gil. Espinoza then told Gil to run or else be killed. Immediately after making this comment, Espinoza then made a hand motion with the gun, as though chambering a bullet and preparing to fire. Gil was afraid of being killed and he got out of the car as Espinoza drove away.
The California Supreme Court concluded over 10 years ago that the use of conditional language to threaten a victim does not shield a defendant from liability under section 422. (People v. Bolin (1998) 18 Cal.4th 297, 338 (Bolin).) A conditional threat “‘may convey to the victim a gravity of purpose and immediate prospect of execution.’ [Citation.]” (Id. at p. 340.)
The jury was instructed on all the elements of the section 422 offense. We presume in support of the judgment the existence of every fact the trier reasonably could have deduced from the evidence and draw all reasonable inferences in support of the judgment. (Rayford, supra, 9 Cal.4th at p. 23.) Here, Gil’s testimony provided sufficient evidence for the jury to have determined that all elements of section 422 were met. Therefore, reversal is not warranted. (Sanchez, supra, 113 Cal.App.4th at p. 329.)
V. Firearm Enhancement
Espinoza contends the firearm enhancement appended to count 2, the assault with a semiautomatic firearm conviction, must be reversed because the use of a firearm is an element of the offense. Additionally, Espinoza again argues the evidence was insufficient to support a finding that he used a firearm during the carjacking. Finally, Espinoza challenges the enhancement because the information alleged a section 12022.5, subdivision (a) enhancement and the verdict form references a section 12022.5, subdivision (b) true finding.
We previously addressed, and rejected, Espinoza’s argument that he did not use a firearm, or used only a fake firearm. We therefore reject without further discussion Espinoza’s contention that the evidence was insufficient to support a true finding that he used a firearm.
We next address the contention that the true finding that Espinoza used a firearm within the meaning of section 12022.5, subdivision (b) must be stricken because the information alleged use within the meaning of subdivision (a) of that code section. The distinction between subdivisions (a) and (b) of section 12022.5 is that subdivision (a) references use of a firearm and subdivision (b) addresses use of an assault weapon or machine gun. There is no evidence whatsoever that Espinoza used an assault weapon or machine gun.
The error in the verdict form in referencing subdivision (b) instead of subdivision (a) of section 12022.5 as stated in the information clearly was typographical. The prosecution never asserted that Espinoza had used a machine gun or assault weapon. The jury’s intent was clear -- to find true that Espinoza used a firearm. Technical defects can be corrected. (See Bolin, supra, 18 Cal.4th at p. 331.)
Regardless of whether the reference to subdivision (b) of section 12022.5 is viewed as a technical defect, this court has the power to modify the finding to conform to the evidence. (§ 1181, subd. 6.) Therefore, we will direct that the verdict and the abstract of judgment be modified to reflect a true finding under section 12022.5, subdivision (a).
We also reject Espinoza’s contention that the section 12022.5 enhancement must be stricken because use of a firearm is an element of the offense of assault with a firearm. Section 12022.5, subdivision (d) states in relevant part:
“Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used.…”
The California Supreme Court held in People v. Ledesma (1997) 16 Cal.4th 90, 97, that “[section 12022.5] subdivision (d) creates an exception to the proviso in subdivision (a) and renders imposition of a use enhancement mandatory for the enumerated offenses.” Accordingly, imposition of the section 12022.5, subdivision (a) enhancement appended to the section 245, subdivision (a)(2) offense of assault with a firearm is mandatory.
DISPOSITION
The count 2 verdict is modified to reflect a conviction pursuant to section 245, subdivision (a)(2). The firearm enhancement appended to count 2 is modified to reflect a true finding under section 12022.5, subdivision (a). The matter is remanded for resentencing in accordance with the modifications. In all other respects the judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., GOMES, J.