Opinion
E065780
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALBERTO HERNANDEZ, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1401962) OPINION APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Carlos Alberto Hernandez guilty of two counts of robbery (Pen. Code, § 211; counts 1 & 2) with the personal use of a firearm (§ 12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior prison term (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). After the trial court granted defendant's motion to strike his prior strike conviction, defendant was sentenced to a total term of 17 years in state prison with 767 days' credit for time served, as follows: the low term of two years on count 1, plus five years for the prior serious felony conviction, plus 10 years for the gun use enhancement, and a concurrent term of 12 years on count 2. Defendant appeals from the judgment.
All future statutory references are to the Penal Code unless otherwise stated. --------
Pursuant to People v. Wende (1979) 25 Cal.3d 436, defendant's appellate counsel asks us to examine the record to determine if there are any issues requiring further briefing. We have carefully reviewed the record on appeal and defendant's supplemental letter brief. We find there are no meritorious issues to be argued or briefed and affirm the judgment.
II
FACTUAL BACKGROUND
In March 2013, defendant was hired at TEMCO, a company that delivers appliances to the customers who purchased them, but was later terminated for poor performance.
On May 15, 2014, at about 7:18 p.m., defendant rented a U-Haul truck in Los Angeles for one day, and returned the truck the next day at 3:50 p.m.
In May 2014, Jose Arevalo and Raul Flores worked for TEMCO as deliverymen. On the day of the incident, May 16, 2014, at about 7:15 a.m. or 7:30 a.m., the two men loaded their truck and made their first delivery of a small refrigerator to a residence in Corona. When Arevalo parked the truck, he noticed a U-Haul truck pass by. At the customer's request, the two men placed the refrigerator in his garage. After doing so, Arevalo returned to the truck's cab to check the location for the next delivery, while Flores went to the rear of the truck to clean up. By the time the men had finished this delivery, a U-Haul truck was backed up to their truck such that the backs of the two trucks were facing each other. Flores noticed that the U-Haul's ramp was down, and the back was open.
While Flores was at the rear of his truck, defendant approached him, lifted his T-shirt, displayed the black handle of a semiautomatic pistol along with the trigger guard, and directed him to summon his partner. Flores was not sure if the gun that he saw was real. Flores went to the cab and told Arevalo that someone wanted to speak to him at the back of the truck. Flores told Arevalo that a man, later identified as defendant, was behind their truck and was directing him to move their cargo into his truck. Flores told Arevalo that defendant was armed. The two men walked to the back of the truck together. Both men were scared.
In Arevalo's presence, defendant again raised his waistband and displayed the handle of a gun as well as part of the trigger. Defendant never removed the gun from his waistband, but Arevalo was still afraid because he knew defendant had a gun. Defendant directed the men to put all of their "shit" in his U-Haul. The men then quickly loaded the U-Haul as directed. Defendant also directed the two men to throw their cell phones in the back of their own truck and shut the sliding door. Only Arevalo had a cell phone, and he complied with this demand. Defendant stated that he had a gripe solely with TEMCO and not with Flores or Arevalo, and never took property that either man personally owned.
Defendant then directed Arevalo to drive the TEMCO truck to a nearby corner and wait for him to arrive in the U-Haul. Instead, Arevalo turned at the corner and continued driving. The U-Haul approached the truck but then turned in the opposite direction. Arevalo returned to the customer's house, contacted him, and asked him to call the police. Meanwhile, Flores grabbed Arevalo's phone in the back of the truck and tried to call 911.
Arevalo wrote down part of the U-Haul truck's license plate number and gave that information to the police. An investigation ensued, and the police learned that defendant had rented the truck and obtained a photograph of defendant. Both Flores and Arevalo viewed a lineup that included defendant's photograph, and both men identified him as the perpetrator of the robbery.
Defendant subsequently was arrested in Las Vegas. A nine-millimeter semiautomatic handgun was lodged in his waistband and was covered by a basketball jersey. The gun was manufactured by a company in nearby Henderson, Nevada. When Arevalo was shown a photograph of the gun seized from defendant, Arevalo believed the gun looked like the one he saw during the robbery.
Defendant testified on his own behalf. He admitted to committing the robberies but claimed he did so with a toy gun because he was in financial need and angry at TEMCO. He explained that he had worked at TEMCO as a driver for three months until he was fired. The company had hired him with the understanding that he would first work as a helper. He believed his employment would be full time, but instead he worked only when the company needed him. This arrangement resulted in financial hardship for defendant, who would sometimes appear in the early morning hours and have no work. Later, defendant ended up being on-call for the company. While at TEMCO, defendant claimed that he knew both Arevalo and Flores and that Arevalo once complained about defendant's use of the company phone. Defendant sensed that Arevalo might have talked badly about him, and he therefore disliked the man. Defendant believed that complaints about his laziness and incompetence, as well as coworker jealousy sabotaged his relationship with the company and led to his termination. Defendant felt financially betrayed, because he had to spend money on boots and a uniform to work at the company.
About a year later, defendant rented a U-Haul to help his friend Wendy and her 10-year-old son move. Thereafter, he decided to help his mother move items out of her home in Moreno Valley. Defendant noticed that Wendy's son left his black toy gun with an orange tip in the truck. On the way to his mother's residence, defendant saw a truck leave TEMCO and thought it might be one of their delivery trucks. He saw Arevalo behind the wheel and grew angry. Defendant then came up with the idea to follow the truck and try to make some money. He followed Arevalo to Corona where he backed the rear of his truck up to the rear of the TEMCO truck.
When Flores approached the back of the TEMCO truck, defendant got out of his U-Haul truck and approached him. He told Flores to summon Arevalo to the rear of the truck. By this point, the toy gun was in defendant's waistband, and he made its presence known to Flores. When Arevalo approached, defendant explained that his gripe lay with their employer and not with the two men themselves and showed Arevalo the gun in his waistband. Arevalo said that defendant could take the company's property, but at defendant's suggestion, Arevalo agreed to move items to the U-Haul. Defendant offered to pay Arevalo for the items at a later time, but Arevalo told him that he should just leave. Defendant later sold the stolen items and made approximately $4,000. He also discarded the toy gun.
Defendant subsequently took his daughter to Las Vegas so that she could visit her maternal relatives. While in Las Vegas, defendant purchased a nine-millimeter pistol for his own protection and that of others. Defendant acknowledged he was arrested in June 2014 in Las Vegas. Defendant also admitted that in March 2004 he was convicted of aggravated assault.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his four-page letter brief, defendant claims he did not receive a fair trial and appears to argue: (1) the trial court prejudicially erred in admitting the firearm from Las Vegas, (2) there was insufficient evidence to support the jury's true finding on the firearm use enhancement, (3) he was prejudiced when the investigator repeatedly stated he was a special agent in tracking known gang members, and (4) he received ineffective assistance of counsel when his attorney failed to investigate the case, prepare his testimony, or call witnesses to support his story.
As to defendant's first claim of error, we find the trial court did not err in admitting into evidence the photograph of the gun recovered from defendant at the time of his arrest in Las Vegas. The gun was relevant to the personal use enhancement allegations. Because the gun was highly probative of the enhancements alleged against defendant, the trial court did not err in admitting the photograph of the gun into evidence. (People v. Zapien (1993) 4 Cal.4th 929, 958 [" 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' "].)
We also reject defendant's second claim of error that the evidence was insufficient to support the gun use enhancements. Under the applicable standard of review, the jury's findings are reviewed for substantial evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) "A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. [Citation.] Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, italics omitted.) Reversal is not warranted unless the evidence is insufficient to support the verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We cannot reweigh the evidence, reinterpret the evidence, or substitute our own judgment for that of the jury. (People v. Baker (2005) 126 Cal.App.4th 463, 469.) "If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding." (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
Proof of a defendant's use of a firearm during a robbery does not require physical production of the weapon. (People v. Aranda (1965) 63 Cal.2d 518, 532, superseded by constitutional amendment on other grounds as stated by People v. Fletcher (1996) 13 Cal.4th 451, 465.) "Testimony by witnesses who state that they saw what looked like a gun, even if they cannot identify the type or caliber, will suffice." (Ibid.) "If the weapon cannot be found, the jury may . . . draw an inference from the circumstances surrounding the robbery that the gun was [real]. Testimony to the effect that the defendant was flourishing the [gun] or pointing it at the victim and was using threatening words or conduct indicating that he intended to fire it if his demands were not met would be evidence from which the inference could be drawn." (Id. at p. 533.)
For purposes of gun enhancements, a " 'firearm' " is defined as "a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion." (§§ 12001; 16520, subd. (a).) The firearm need not be operable to support a finding of use. (§ 12022.53, subd. (b); People v. Bland (1995) 10 Cal.4th 991, 1005.) However, replica weapons, imitation or toy guns, pellet guns, and other objects that do not shoot projectiles by force of explosion or combustion are not considered firearms. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).)
The possibility that defendant's gun was a toy gun hardly aids his appeal since we are required to indulge every reasonable inference the trier of fact could have drawn from the evidence. (People v. Mendez (2010) 188 Cal.App.4th 47, 56.) Such inferences can be drawn from the evidence adduced at trial. Defendant repeatedly showed the gun to the victims in his waistband. The victims believed the gun to be real. And, defendant was found about a month later with a pistol that looked similar to the one defendant had during the robbery in his waistband. There was substantial evidence to support the interpretation chosen by the jury, i.e., that the gun displayed by defendant was a real firearm. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Furthermore, the position advanced by defendant is not novel. Similar arguments have been considered and rejected by the courts of this state on numerous occasions. In Monjaras, supra, 164 Cal.App.4th 1432, the defendant accosted a woman in a parking lot and demanded she give him her purse. He then pulled up his shirt and displayed the handle of a pistol tucked into his waistband. A jury convicted the defendant of robbery and returned a true finding on a firearm enhancement under section 12022.53. (Id. at p. 1434.) The defendant appealed, "[p]ointing out that the victim could not say whether the pistol in [his] waistband was a gun or a toy, and making the dubious assertion that he 'did not undertake any behavior suggesting that he would fire the weapon.' " (Id. at p. 1435.) The defendant also argued that the firearm enhancement "was sustained merely on conjecture about the nature of the alleged weapon." (Ibid.) In rejecting the defendant's arguments, the appellate court noted that "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." (Id. at p. 1436.)
The holding of the Monjaras case is summarized in its final paragraph: "[W]hen as here 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 within the meaning of section 12022.53, subdivision (b). In other words, the victim's inability to say conclusively that the gun was real . . . does not create a reasonable doubt, as a matter of law, that the gun was a firearm." (Monjaras, supra, 164 Cal.App.4th at pp. 1437-1438, fn. omitted.) The Monjaras opinion rests upon the sound policy that criminals should not benefit from their own destruction or concealment of evidence. Its holding is applicable in cases where a defendant has impeded the prosecution's ability to present relevant evidence by hiding, destroying or otherwise disposing of an object used during the commission of a crime. (See Id. at p. 1436 [noting "the object itself is usually not recovered by investigating officers"].) Here, defendant discarded the purported toy gun while later being found in possession of a real pistol firearm. If the gun was a fake, he would have been better served by retaining it. Defendant chose to eliminate the evidence, thereby accepting the risk of a firearm enhancement based upon the testimony of his victims and his own self-serving statements. The victim's testimony, considered in the context of the surrounding circumstances, constitutes substantial evidence in support of the jury's verdict.
We further reject defendant's contention that he was prejudiced when the Las Vegas detective stated three times he was a special agent in tracking known gang members. There is no evidence defendant was prejudiced by the detective's comments concerning his background. First, the detective was merely noting his specialty in criminal street gangs. Second, after defense counsel requested a side bar, the detective was asked to speak with the prosecutor outside the presence of the jury. When the detective was recalled to the witness stand, the detective explained that he was also tasked with finding fugitives that come from out of state and that he was aware defendant had an out-of-state arrest warrant. Moreover, on cross-examination, the detective acknowledged that he had no evidence that this was a gang case.
Finally, we reject defendant's summary assertion that he received ineffective assistance of counsel when his attorney failed to investigate the case, prepare his testimony, or call witnesses to support his story. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsel's deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Harris (1993) 19 Cal.App.4th 709, 714.) There is no evidence in the record that trial counsel did not make reasonable efforts to investigate the case, prepare defendant's testimony, or call witnesses to support defendant's story. Perhaps, counsel could not find witnesses to support defendant's story or made a tactical decision to not call witnesses on behalf of defendant. " '[O]ur review on direct appeal is limited to the appellate record.' [Citation.] . . . '[B]ecause defendant's claim is dependent upon evidence and matters not reflected in the record on appeal, we decline to consider it . . . .' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 952.) These are matters more properly resolved in the context of a petition for writ of habeas corpus.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. McKINSTER
J.