People v. Jacobs

• Decision Date: 03 July 1987
• Citation: 238 Cal.Rptr. 278,193 Cal.App.3d 375
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Rickey JACOBS, Defendant and Appellant. E002355.

Page 278

238 Cal.Rptr. 278

193 Cal.App.3d 375

PEOPLE of the State of California, Plaintiff and Respondent, v. Rickey JACOBS, Defendant and Appellant.

E002355.

Court of Appeal, Fourth District, Division 2, California.

July 3, 1987.

Review Denied Oct. 14, 1987.

[193 Cal.App.3d 377] David L. Tucker, Jr., Bishop, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., and Steven H. Zeigen, Supervising Deputy Atty. Gen., for plaintiff and respondent.

OPINION

EDWARDS, Associate Justice. ^*

Defendant Rickey Jacobs was convicted by a jury of robbery (Pen.Code, § 211), possession of stolen property (Pen.Code, § 496), and removing the serial numbers from a firearm (Pen.Code § 12090). In addition, defendant was convicted of misdemeanor violations of carrying a concealed weapon (Pen.Code, § 12025) and a loaded firearm in a vehicle (Pen.Code, § 12031.) The jury also found that defendant personally used a firearm in the commission of the robbery within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). ¹

At sentencing, the court found defendant to be ineligible for probation pursuant to Penal Code section 1203.06, subdivision (a)(1), and imposed the upper term of five years for the robbery. A two-year enhancement provided in Penal Code section 12022.5 was added for use of a firearm. The sentences on the remaining counts were ordered to run concurrently with the sentences imposed for the robbery.

Defendant appeals on the ground there was insufficient evidence for the jury to find he used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), and consequently the sentencing court erred in determining he was ineligible for probation and imposing the two-year enhancement.

FACTUAL BACKGROUND

On March 23, 1985, a man later identified to be defendant was looking at a black 1985 Mustang GT automobile on the lot of Fair City Ford in Pomona, California. Charles Szasz, a salesman for Fair City Ford, suggested that defendant test drive the Mustang.

Accompanied by Szasz, defendant drove the Mustang around the side streets of Pomona for a few minutes. Defendant then offered Szasz some cocaine. The offer was refused. A short while later, defendant explained to Szasz that he needed the Mustang to get to another location to see about a $10,000 cocaine deal, and that his wife and children were in danger. Szasz refused to allow defendant to take the Mustang for this purpose and suggested they return to the dealership car lot.

Defendant became adamant about his intentions and advised Szasz that he could either get out of the car now or go with defendant and risk getting shot. When Szasz refused to get out, defendant said "I have a gun and I don't want to use it." Szasz apparently did not believe defendant and indicated that he was going to take the key from the ignition. According to Szasz's testimony at trial, defendant then "reached over with his right hand and covered the ignition and reached in his jacket with his left hand and cocked what I thought or sounded like he cocked a gun in his jacket."

Szasz testified that he is familiar with guns and the sound of a revolver being cocked. He was positive defendant had a gun, although he never actually saw a firearm. Fearing for his life at this point, Szasz exited the Mustang and defendant drove off.

On April 1, 1985, a highway patrol officer observed defendant asleep in a parked black Mustang in the Highgrove area of Riverside County. The Mustang had New Mexico license plates which the officer determined to be stolen. Defendant was arrested for auto theft; a search of the interior revealed a .22 caliber magnum revolver located in the center console of the vehicle. The serial numbers had been removed but the gun was determined to be stolen.

At trial this gun was cocked by the deputy district attorney in the presence of witness Szasz who testified that the cocking noise was the same sound he heard when defendant threatened him in the Mustang.

Defendant claimed he was not the individual who stole the Mustang. He testified that during the evening hours of March 31, 1985, he was given a ride by an individual named Steve who was driving the black Mustang. They drove around until 2 a.m. the following day when Steve parked the vehicle and left to take care of some business. He never returned.

Defendant moved to the driver's seat and fell asleep. He awoke later that morning when the highway patrol officer arrived. Defendant testified he was not aware the revolver was in the car.

DISCUSSION

The court is presented with two issues concerning the sufficiency of the evidence:

1. During the commission of the robbery was defendant armed with a firearm?

2. Did he use it?

In resolving these issues, the court is mindful of the basic standards of review that apply to this case. Whether the defendant was armed with and personally used a firearm are factual questions for the jury's determination. (People v. Smith (1980) 101 Cal.App.3d 964, 967, 161 Cal.Rptr. 787.)

On appeal, "... the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence.... 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, 162 Cal.Rptr. 431, 606 P.2d 738.) The court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding." (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)

I

Implicit in the jury's verdict is a finding that defendant, in fact, had a gun at the time of the robbery. The evidence certainly supports this finding. Defendant told the victim he had a gun, the sound of cocking the hammer was heard by the victim who was familiar with such sounds, and a gun was subsequently discovered inside the stolen Mustang of which defendant was the sole occupant. Based upon this evidence, we find the jury reasonably found this fact to be true.

II

The more difficult question is whether the evidence supports a finding that defendant used the gun within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). The California Supreme Court has given the following definition to the term "use" as contained in Penal Code section 12022.5. "Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. 'Use' means, among other things, 'to carry out a purpose or action by means of,' to 'make instrumental to an end or process,' and to 'apply to advantage.' [Citation.]" (People v. Chambers (1972) 7 Cal.3d 666, 672, 102 Cal.Rptr. 776, 498 P.2d 1024.)

The Chambers court also held that, to give effect to the obvious legislative intent to deter the use of firearms, this term must be given a broad construction. (Ibid.)

This definition has been followed in many opinions of the Courts of Appeal. Division One of our district reviewed and summarized the facts of those opinions and distinguished those factors which amount to the use of a firearm from those found to constitute mere possession during the commission of a specified felony. (People v. Hays (1983) 147 Cal.App.3d 534, 195 Cal.Rptr. 252.)

Of the cases analyzed in Hays, those in which no use of a firearm was found involved the unintentional discharge of a weapon, or mere possession only, or a codefendant's use, or a holstered weapon. (People v. Hays, supra, 147 Cal.App.3d at p. 548, 195 Cal.Rptr. 252.) Those cases in which a firearm was...