IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A123026

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1 Filed 5/20/10 P. v. Jones CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. JAQUAN TARRELL JONES, Defendant and Appellant. A (Contra Costa County Super. Ct. No ) Defendant Jaquan Tarrell Jones appeals a judgment entered upon a jury verdict finding him guilty of two counts of second degree robbery (Pen. Code, & 212.5, subd. (c)) (counts one and two), and one count of second degree commercial burglary ( 459 & 460, subd. (b)) (count three), and finding true allegations that he personally used a firearm. ( , subd. (a) 2 & , subd. (b).) For count one, the trial court sentenced him to the midterm of three years ( 211), imposed a consecutive tenyear term pursuant to section , subdivision (b), and stayed the enhancement pursuant to section , subdivision (a)(1), for an aggregate 13-year term. It imposed an identical sentence for count two, to run concurrently, and stayed sentence on 1 All statutory references are to the Penal Code. 2 Three of the enhancements were charged and found true under section , subdivision (a)(1). An amendment of section in 2002 eliminated subdivisions (a)(1) and (a)(2) and substituted instead subdivision (a). Both former subdivision (a)(1) and current subdivision (a) provide, in slightly different wording, that, with exceptions not relevant here, a person who personally uses a firearm in the commission of a felony or attempted felony shall receive an additional and consecutive prison term of three, four, or ten years, unless use of a firearm is an element of the offense. 1

2 count three ( 654). Defendant contends on appeal that there is no substantial evidence to support one of the robbery convictions, that the trial court committed instructional error, that he received ineffective assistance of counsel, and that he is entitled to additional presentence credit. We agree with defendant that he is entitled to an additional day of presentence credit, and shall order the judgment so modified. As modified, we shall affirm the judgment. I. BACKGROUND Josephine Cerda s husband owned a clothing store known as Certified Clothing. At approximately 7:40 on the evening of August 1, 2006, Cerda was working in the store. Cerda s 14-year-old niece, Karen Medina, was visiting her at the store, and was sitting in the back room. As Cerda went toward the back room, she saw defendant walk in and approach her, pointing a gun and telling her not to move and to stand against the wall of the back room. Two other men were with him. 3 Medina put her hands up and dropped her cell phone. Defendant was pointing his gun at Cerda s face, and told her he would shoot her if he moved. He also pointed the gun at Medina. Cerda testified that the gun seemed to be made of black metal with brown on it, and had a barrel and hole at the front. It appeared to be a real gun. Cerda had never seen, owned, or handled a gun before. Medina likewise testified that the gun was black and brown, looked like it was made of metal, and appeared real. According to Cerda, defendant told Medina to give him her cell phone, and Medina did so. Medina testified that she had her phone with her when defendant came into the backroom, but that it must have fallen when she jumped in shock. She did not recall anyone asking her for her cell phone, or handing her phone to anyone. She did not notice anyone in the room do anything with her cell phone, but explained that she was focusing on trying not to move so as not to be injured. She looked for her cell phone later, and found part of it in the back room, near where she had been standing; the back 3 One of the others was defendant s half-brother, who was a juvenile. 2

3 part of the phone, which included the battery, was missing. Medina testified that she told an officer after the incident that her cell phone was missing, and that he had taken it. 4 Defendant asked where to find certain brands of jeans. Cerda told him he could take whatever he wanted, and asked him not to shoot her. The other men put clothing into boxes and carried them outside, while defendant continued to point the gun at both Cerda and Medina. Defendant told Cerda to open the register and give him the money. Pointing the gun at Cerda from beneath his jacket, he had her go to the register. She was too nervous and shaky to enter the password and open the register. From the back room, defendant and the others took a case that contained probably more than [500 dollars]. One of the men asked for tape recording tapes, and began knocking down and breaking equipment in the back room, which contained the recording equipment for the store s surveillance cameras. They took all but one of the telephones in the store and left. As defendant left, he told Cerda to say nothing or he would shoot her. Cerda later realized her wedding ring was gone. Defendant s half-brother spoke with Detective Kirk Sullivan afterwards, and told him he had never seen defendant with a gun before the day in question, that the trio did not discuss using a gun before the robbery, that he saw defendant with a gun only when he went into the back room to tell him it was time to leave, and that he was surprised to see the gun. He described the gun as a black and gray single shot gun, and said it might be a.40 caliber automatic weapon. He did not say that the gun was not a real firearm. Officer Ryan Wilkie of the Pittsburg Police Department, who interviewed Cerda and Medina after the incident, testified that he did not recall either of them mentioning anything about a cell phone, although Cerda mentioned that one of the men had removed companions. 4 The rest of the cell phone was not found in the vehicle used by defendant and his 3

4 a cordless phone from a desk. 5 His written report did not indicate that Cerda or Medina told him anything about a cell phone. He did not hear afterwards that Cerda reported a cell phone missing. Defendant presented evidence through James Norris, an expert on both real and imitation firearms. Norris testified that in the case of a real firearm, a bullet is forced down the barrel through a combustion process, as a result of the high pressure caused when an explosive was ignited. Imitation weapons, such as BB guns and Airsoft weapons, use metal or plastic pellets, which are expelled by gas pressure, spring action, or electricity. BB guns generally are not designed to replicate other weapons, although they can look real. The muzzle or end from which the bullet or projectile comes out of a BB gun is smaller than that of a real gun. Airsoft guns, on the other hand, are designed to look like real handguns. Most are dark or silver in color. Airsoft guns are supposed to have bright orange or yellow muzzles, but the colored portion can be unclipped or colored to look like a real gun. Norris had seen four or five altered Airsoft guns in the course of his work. Airsoft guns are available at stores such as Wal-Mart, Big 5, and specialty retailers, as well as on the internet, including on such sites as ebay and Craigslist. Information on altering Airsoft guns to hide the orange muzzle is available on the internet, as are altered Airsoft guns. There was no waiting period to buy an imitation weapon. Most BB guns cost under 100 dollars, and some cost under 50 dollars. Real guns cost from 300 or 400 dollars to more than 1,000 dollars. In rebuttal, the People presented the evidence of Chris Coleman, the supervisor of the firearms division in the Contra Costa Office of the Sheriff s Criminalistics Laboratory, who testified that from 2001 until the time he testified in 2008, the laboratory had received approximately 9,000 firearms for identification or ballistic analysis, and less than 12 of those had been BB guns, Airsoft guns, or other replica firearms. 5 Wilkie first testified that that he did not recall anything about a cell phone, but when asked whether he had an independent recollection of whether either Medina or Cerda had mentioned a cell phone, replied, Yeah, I believe so, but I can t say for sure. 4

5 Approximately one-third of the Airsoft guns he had seen in his experience outside a work context had tips that were altered to hide the orange tip. II. DISCUSSION A. Substantial Evidence That Defendant Robbed Medina Defendant contends there is no substantial evidence that he committed the offense charged in count two, robbing Medina of her cell phone. 6 In assessing such a claim, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Further, the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] This standard applies whether direct or circumstantial evidence is involved. Although it is the jury s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant s guilt beyond a reasonable doubt. [Citation.] 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. [Citation.] (People v. Catlin (2001) 26 Cal.4th 81, 139.) Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.) The word felonious means a taking with the intent to steal, that is, to deprive the owner of the property taken. (People v. Bacigalupo (1991) 1 Cal.4th 103, 126 (Bacigalupo); Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, 825.) The taking element of robbery itself has two necessary elements, gaining possession of the victim s property and asporting or carrying away the loot.... [ ]... [F]or purposes 6 Medina did not work at Certified Clothing, and the People prosecuted count two based on the theory that defendant had robbed her of a portion of her cell phone. 5

6 of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, italics omitted.) Thus, whether a person conveyed the [property] one yard or one mile from the presence of his victim is immaterial insofar as the element of asportation is concerned.... the crime of robbery is complete when the robber unlawfully and by means of force or fear gains possession of the movable property of another in the presence of its lawful custodian and reduces it to his manual possession. His escape with the loot is not necessary to complete the crime. (People v. Clark (1945) 70 Cal.App.2d 132, 133 (Clark); see also People v. Pham (1993) 15 Cal.App.4th 61, 65 (Pham).) Moreover, [t]he interference with the owner s possession need be only for an appreciable interval of time, be it ever so short. (People v. Pruitt (1969) 269 Cal.App.2d 501, (Pruitt); see also People v. Hayes (1992) 6 Cal.App.4th 616, , fn. 7.) Thus, in Pruitt, the taking of a wallet from the victim, even though it was promptly handed back, constituted a robbery. (Pruitt, 269 Cal.App.2d at p. 505.) Defendant contends the evidence does not show that he took a portion of Medina s cell phone with him when he left the store, and therefore there is insufficient evidence that he robbed her. In support of his contention, he points out that neither Cerda nor Medina testified either that they saw defendant disassemble the telephone and pocket the battery or that they saw him pick up the battery from the floor. He also points out that Officer Wilkie did not note the loss of the cell phone in his police report, and did not recall being asked to look for the battery; from this, he argues that the officers were not looking for a cell phone when they examined the scene, and the battery could easily have escaped their notice in the wreckage of the back room of the store. We reject this contention. Whether or not defendant took a portion of Medina s cell phone with him when he left the store, there is evidence that he pointed a gun at Cerda and Medina, that he demanded Medina s cell phone, that she gave it to him, and that he took it. At that point, the taking was complete (see Clark, supra, 70 Cal.App.2d at p. 133; Pham, supra, 15 Cal.App.4th at p. 65; Pruitt, supra, 269 Cal.App.2d at p. 505), and the jury could reasonably conclude defendant intended to deprive Medina 6

7 permanently of the cell phone (see Bacigalupo, supra, 1 Cal.4th at p. 126; People v. Burney (2009) 47 Cal.4th 203, 253). 7 B. Refusal of Instruction on Imitation Firearms The trial court instructed the jury pursuant to CALCRIM No that if it found defendant guilty of the crimes charged, it must decide whether the People had proved the additional allegation that he personally used a firearm during the commission of the crimes. ( , subd. (a).) As part of this instruction, the court told the jury: A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. Defendant asked the court to add a paragraph from CALCRIM No. 985, the jury instruction for the crime of brandishing an imitation firearm, providing that: An imitation firearm is a device [, or a toy gun, replica of a firearm, or BB device,] that is so substantially similar to a real firearm in color and overall appearance that a reasonable person would believe that it is a real firearm. [A BB device is an instrument that expels a projectile, such as a BB or other pellet, not exceeding 6 mm caliber, through the force of air pressure, gas pressure, or spring action, or any spot marker gun.] (See ) The trial court refused the request, on the ground that the proposed language related to a separate crime, and that the additional language was unnecessary because defendant s expert witness had made clear the nature of a replica gun, such as a pellet gun or Airsoft gun. Defendant contends that by refusing to instruct the jury in the proposed language the trial court violated its duty to give legally correct instructions that pinpoint the theory of the defense. (See People v. Hughes (2002) 27 Cal.4th 287, 361 (Hughes); People v. Earp (1999) 20 Cal.4th 826, (Earp).) ~(AOB 20)~ He argues that the requested instruction was critical because the jury might have believed the propulsive expulsion of a BB or Airsoft pellet to be a form of explosion for purposes of the definition provided 7 In any case, a trier of fact could conclude from the fact that a portion of the cell phone was missing, coupled with the evidence that the trio took other phones from the store, that defendant retained possession of it. 7

8 under CALCRIM No and, as a result, that such imitation weapons were firearms for purposes of the enhancement. Reversal for erroneous refusal to give a pinpoint instruction is appropriate where it is reasonably probable the jury would have come to a different conclusion had it been given the proposed instruction. (See Earp, 20 Cal.4th at p. 887; see also Hughes, supra, 27 Cal.4th at p. 363, People v. Watson (1956) 46 Cal.2d 818, 836.) Even assuming the trial court should have given the instruction, there was no prejudice. Through James Norris, the jury heard extensive testimony about the difference between real and imitation firearms. It learned that a real firearm operates through a primary explosive, which is ignited to force a bullet down the barrel; that this was a combustion process; and that imitation weapons such as BB guns and Airsoft guns used pellets and operated either by spring action, gas or air pressure, or electricity, rather than by combustion. During closing argument, the prosecutor argued that the testimony of defendant s brother showed that the gun was a real gun, and that if it had been a BB gun or an Airsoft gun, he would have said so. She argued at other points that the gun in question was real, and that if it had been fake, it would have had an orange tip unless it had been altered. Defense counsel argued that a real firearm operates by combustion, and that Airsoft guns and BB guns operate by compression and were not real firearms. On this record, we see no possibility that the jury might have believed a BB gun or Airsoft gun was a real gun or that it constituted a firearm for purposes of the enhancement. C. Ineffective Assistance of Counsel Defendant contends his trial counsel rendered ineffective assistance in failing to request an instruction on personal use of a dangerous or deadly weapon ( 12022, subd. (b)(1)) as a lesser included enhancement to personal use of a firearm ( , 8

9 subd. (a) & , subd. (b)). 8 (See People v. Dixon (2007) 153 Cal.App.4th 985, ) Defendant also makes the subsidiary argument that it was error for the trial court to fail to instruct on the lesser-included enhancement. Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel s deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsel s failings, defendant would have obtained a more favorable result. [Citations.] (People v. Dennis (1998) 17 Cal.4th 468, ) A court must indulge a strong presumption that counsel s acts were within the wide range of reasonable professional assistance. [Citation.] (Id. at p. 541.) Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel s omissions. [Citation.] (People v. Lucas (1995) 12 Cal.4th 415, 442.) If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel s performance was deficient. [Citation.] (People v. Mayfield (1997) 14 Cal.4th 668, 784.) Prejudice is established when counsel s performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (Ibid., quoting Strickland v. Washington (1984) 466 U.S. 668, 686.) Prejudice must be proved as a demonstrable reality, not simply speculation. (People v. Williams (1988) 44 Cal.3d 883, 937.) 8 Under section 12022, subdivision (b)(1), one who uses a deadly or dangerous weapon in the commission of a felony is subject to an additional consecutive one-year prison term. Section , subdivision (a) provides for an additional consecutive term of three, four, or ten years where the defendant personally uses a firearm in the commission of a felony, and section , subdivision (b) provides for an additional ten-year term for using a firearm in the commission of specified felonies, including robbery in violation of section 211. ( , subd. (a)(4).) 9

10 Defendant has failed to make the required showing that he suffered prejudice that is, that as a result of his counsel s performance, the trial cannot be relied on as having produced a just result. (People v. Mayfield, supra, 14 Cal.4th at p. 789.) As we have discussed, the jury was fully aware that if the gun was an imitation gun, such as a BB or Airsoft gun, it was not a firearm for purposes of the enhancement allegations. Moreover, as our Supreme Court noted in the course of concluding that a trial court has no duty to instruct sua sponte on being armed with a firearm as a lesser included enhancement of personally using a firearm, [o]ne of the primary reasons for requiring instructions on lesser included offenses is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between [guilt] and innocence that is, to eliminate the risk that the jury will convict... simply to avoid setting the defendant free. [Citation.] This risk is wholly absent with respect to enhancements, which a jury does not even consider unless it has already convicted defendant of the underlying substantive offense. (People v. Majors (1998) 18 Cal.4th 385, 410 (Majors).) Under the circumstances, whether or not it would have been proper for the trial court in this case to instruct on use of a dangerous or deadly weapon as a lesser enhancement had counsel requested such an instruction, defendant has not shown that counsel s omission to request the instruction was prejudicial, or that the court had a sua sponte duty to give this instruction. 9 D. Custody Credits Finally, defendant contends, and the Attorney General concedes, that he should receive credit for an additional day of presentence custody. Defendant was credited with 707 actual days in custody. He was taken into custody on October 13, 2006, and sentenced on September 19, Calculating the time served to include both the day defendant entered custody and the day of sentencing (People v. Smith (1989) In order to preserve the issue for further review, defendant contends that Majors was wrongly decided, and that the trial court had a duty to instruct on use of a deadly weapon as a lesser enhancement sua sponte. We are, of course, bound by our Supreme Court s decision in Majors. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 10

11 Cal.App.3d 523, ; ), we agree with defendant that he should have received credit for 708 actual days in custody. III. DISPOSITION The judgment is modified to give defendant credit for an additional day in presentence custody, for a total of 708 days. The trial court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed. RIVERA, J. We concur: RUVOLO, P.J. SEPULVEDA, J. 11