People v. Espinoza

Opinion

WIENER, J.

Roman Espinoza, Jr. (Espinoza) was convicted by a jury of robbery (Pen. Code, § 211; all references are to the Penal Code unless otherwise specified) with the finding he personally used a firearm in the commission of the offense (§ 12022.5). He was sentenced to prison for five years. In his appeal from the judgment he claims his lawyer was incompetent and the court should have instructed

sua sponte

that accomplice testimony on firearm use required corroboration. We conclude that defense counsel’s decision to waive closing argument did not deny Espinoza the effective aid of counsel and the jury was properly instructed. We affirm the judgment.

Facts

On September 9, 1978, Dennis Evans, a clerk at U-Tote-M Market, was robbed. At about 1:30 a.m., Evans had gone outside to clean the gas pumps when he noticed a man, Danny Baldwin, standing by the phone, and a second man, later identified by Evans as the defendant, who gave him “odd looks.” Evans was scared and returned to the store. Defendant followed him, pulled a gun, which Evans thought was a .32 automatic, and cocked it. Evans told defendant he didn’t need the gun; he could have all the money. Defendant put the gun to Evans’ forehead and told him to hurry up. After getting the money, defendant left.

At trial, Danny Baldwin was called by the People and testified. He said he was with defendant and a Marcos Rodriguez on the night in question. They eventually went over to the market and discussed committing a robbery. Rodriguez, who said he was not going to pull the robbery, gave defendant a loaded .38 revolver. Baldwin, as the lookout, stayed outside the store while defendant went inside, pulled the gun on the proprietor, obtained the money and fled. Defendant did not testify. Defense counsel did not argue the case to the jury.

Defendant Was Not Denied the Effective Aid of Counsel

Defendant first asserts his appointed lawyer denied him the effective aid of counsel by failing to make a closing argument to the jury.

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