Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA352178 Judith L. Champagne, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Juan Carlos Pedroza challenges the sufficiency of the evidence that he used a knife in a robbery. He also points out a typographical error in the abstract of judgment which respondent concedes requires correction.
We find sufficient evidence that appellant used a knife in the robbery. The matter is remanded to the trial court to correct the error in the abstract of judgment.
FACTUAL AND PROCEDURAL SUMMARY
Appellant chased a man into an Alcoholics Anonymous meeting in the El Sereno area of Los Angeles on the evening of January 15, 2009. A confederate of appellant’s followed him into the room. Appellant took money from the man he had chased. As appellant did this, the confederate told the six men who were there for the meeting not to call police or he and appellant would come back and kill them all. The confederate took a plastic gallon container belonging to the AA group which contained $50 to $70. Appellant and his confederate asked the men for their cell phones. The man who had been robbed turned his over.
Norman Ordonez was one of the men at the AA meeting. Apparently appellant saw Ordonez trying to hide his wallet in a desk drawer. Appellant came up behind Ordonez, pulled him up, put something that felt like the edge of a knife against his neck, and took his wallet. Ordonez never saw the weapon.
Appellant was arrested and charged with three counts of robbery and one count of commercial burglary in an unrelated incident. It was alleged that appellant personally used a deadly and dangerous weapon, a knife, in robbing Ordonez within the meaning of Penal Code section 12022, subdivision (b)(1), which made the crime a serious felony under section 1192.7, subdivision (c)(23). The information also alleged that the robberies were committed for the benefit of a criminal street gang.
All further statutory references are to the Penal Code.
Appellant pled not guilty and was tried by jury. He was found guilty of robbing Ordonez (count 2) and of commercial burglary. The jury found the weapon charge relating to the Ordonez robbery true. Appellant was found not guilty of the other two robbery counts. The jury was unable to reach a verdict on the gang enhancement and that enhancement was stricken at sentencing on the prosecutor’s motion.
Appellant was sentenced to a five-year upper term for the robbery count and an additional year on the weapon enhancement. A concurrent two-year term was imposed for the commercial burglary count. This timely appeal followed.
DISCUSSION
I
Appellant challenges the sufficiency of the evidence that he used a knife to rob Ordonez, since the victim did not see the knife, but only felt an object “like the edge of a knife” held against his neck.
At the time of the robbery, Ordonez was inside the meeting room, sitting at a desk. When appellant and his confederate ordered the men to turn over their cell phones, Ordonez hid his cell phone in a desk drawer. He was afraid his wallet would also be taken, so he also hid it in a drawer. Appellant walked in his direction and asked what he was hiding. Appellant came behind the desk, pulled Ordonez up, and placed something Ordonez believed to be a knife on the left side of his neck, about an inch below his ear. Appellant told Ordonez not to move or else he would be killed. Ordonez was scared because appellant was in control of him.
Ordonez was asked if he actually felt something touching the left side of his neck. He said it felt “[l]ike the edge of a knife.” He also said it was hard. He did not see the object. Ordonez was asked what else caused him to believe it was a knife that appellant held to his neck. He answered: “Besides the fact that I am familiar with how a knife is, so I believe it was.” Ordonez was asked the material of the object held against his neck and said it was metal. He did not suffer a cut.
When an appellant challenges the sufficiency of the evidence to support a finding that he personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1), “[t]he question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt. [Citations.]” (People v. Alvarez (1996) 14 Cal.4th 155, 225.) “We presume the existence of every fact the trier of fact could reasonably deduce from the evidence.” (In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322.)
“Section 12022, subdivision (b)[1], states, in pertinent part: ‘Any person who personally uses a deadly or dangerous weapon in the commission of a felony... shall be punished by an additional and consecutive term of imprisonment in the state prison for one year....’ The statute does not define ‘deadly or dangerous weapon.’ To find a section 12022, subdivision (b) allegation true, the fact finder must conclude that the defendant himself intentionally displayed an instrument capable of inflicting great bodily injury or death in a menacing manner during the crime. [Citation.]” (In re Bartholomew D., supra, 131 Cal.App.4th at p. 322.)
In People v. Graham (1969) 71 Cal.2d 303 (Graham) (disapproved on another ground in People v. Ray (1975) 14 Cal.3d 20, disapproved on another ground in People v. Lasko (2000) 23 Cal.4th 101), the Supreme Court distinguished between two classes of “dangerous or deadly weapons” as used in former section 211a, first degree robbery, which required the robbery to be perpetrated by a person armed with a dangerous or deadly weapon. (Id. at pp. 327-328.) The first class includes “‘instrumentalities which are weapons in the strict sense of the word, ’” such as guns, dirks and blackjacks which are as a matter of law “‘dangerous or deadly’ to others in the ordinary use for which they are designed....” (Id. at p. 327.)
The second category is “‘those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such.’” (Graham, supra, 71 Cal.2d at p. 327 .) Examples include “‘ordinary razors, pocket-knives, ... and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not “dangerous or deadly” to others in the ordinary use for which they are designed....’” (Id. at pp. 327-328.) Objects falling within the second category are not “dangerous or deadly” weapons as a matter of law. (Id. at p. 328.)
The Graham court explained the circumstances in which an item under the second category becomes a deadly or dangerous weapon: “‘When it appears... that an instrumentality other than one falling within the first class is capable of being used in a “dangerous or deadly” manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a “dangerous or deadly weapon” may be thus established, at least for the purposes of that occasion.’ [Citation.]” (Graham, supra, 71 Cal.2d at p. 328.)
Appellant claims: “Here, there was no evidence whatsoever regarding the nature of the object, other than it felt like it was made of metal.” But Ordonez also testified that the object was hard and felt “[l]ike the edge of a knife.” Also telling is appellant’s threat to kill Ordonez if he did not cooperate. We conclude the jury was entitled to infer that the hard metal object that felt like the edge of a knife was a knife which had been held against Ordonez’s throat. Appellant’s statement establishes that he intended to use the object as a weapon, a factor supporting the finding that it was a dangerous and deadly weapon within the meaning of section 12022, subdivision (b)(1). (Graham, supra, 71 Cal.2d at p. 328.)
According to appellant, the object cannot be found to be a dangerous or deadly weapon because there is no evidence the object was sharp. He cites People v. Smith (1963) 223 Cal.App.2d 431. In that case, the “victim testified that defendant stuck a knife on his neck, that he did not see it, but felt the point.” (Id. at p. 432.) The court concluded “[t]he knife could be found to be a deadly weapon, without regard to its size, from the manner of its use.” (Ibid.) No other facts regarding the use of the knife are provided in Smith. Since Smith was convicted of robbery, we may infer that the knife was placed at the victim’s neck to forcibly take property from him. Here, appellant placed a hard metal object with an edge like a knife against the victim’s throat while threatening to kill him in order to rob him. As in Smith, under these circumstances, the object could be found to be a deadly weapon.
People v. Beasley (2003) 105 Cal.App.4th 1078, is also cited by appellant. In that case, the defendant was charged with assault with a deadly weapon under section 245, subdivision (a)(1). He had beaten his cohabitant with a broomstick, striking her on the head and back. The court found that the victim’s testimony was too cursory to establish that the broomstick, as wielded by Beasley, was capable of causing the requisite great bodily injury or death. Neither the broomstick nor photographs of it were introduced into evidence. The record did not indicate whether it was solid wood, or a hollow tube made of metal, fiberglass, or plastic. The Court of Appeal noted that the composition, weight, and rigidity would necessarily affect the probability and likelihood that the broomstick could cause great bodily injury. (Id. at pp. 1087-1088.) Based on this record, the court concluded “[t]he jury therefore had before it no facts from which it could assess the severity of the impact between the stick and [the victim’s] body.” The injuries to the victim were not sufficient to establish the broomstick was used as a deadly weapon. (Id. at p. 1088.)
In contrast, here we know more about the composition of the object wielded by appellant; it was metal, hard, and had an edge like a knife. Beasley is distinguishable. In light of the description of the weapon, the absence of injuries to Ordonez is not determinative.
Appellant contrasts cases like People v. Herd (1963) 220 Cal.App.2d 847, in which a slash wound to the victim requiring a nine-day hospitalization was found sufficient to support the conviction for assault with a deadly weapon even though the knife used was not an inherently deadly weapon. (Id. at p. 850.)
II
The deadly weapon enhancement of which appellant was convicted was under section 12022, subdivision (b)(1), as we have discussed. The court sentenced appellant to a one-year enhancement under section 12022, subdivision (b)(1). The clerk’s minute order confirms this sentence.
Appellant argues, and respondent concedes that the abstract of judgment erroneously reflects this enhancement as under section “12022.9(B)(1), ” rather than the correct provision, section 12022, subdivision (b)(1). We shall order the abstract of judgment corrected to accurately reflect the oral judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
We direct the abstract of judgment corrected to reflect a one-year enhancement on count 2 for robbery under section 12022, subdivision (b)(1). The clerk of the superior court is to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.