People v. Russell CA3

Filed 1/14/16 P. v. Russell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C078693

Plaintiff and Respondent, (Super. Ct. No. 14F03412)

v.

NATHAN RUSSELL,

Defendant and Appellant.

Defendant Nathan Russell robbed Oliver Hernandez (the victim) of his gold chain with pendant, his watch, and his cell phone while he flashed the brown handle of a gun that was in his waistband. A jury found him guilty of robbery and receiving stolen property and found true he personally used a firearm during the robbery. On appeal, defendant contends: (1) the trial court abused its discretion in admitting a photograph of a gun found on the cell phone of defendant’s cousin; and (2) the People presented insufficient evidence he personally used a firearm. Disagreeing, we affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND Around 2:45 p.m. on May 19, 2014, the victim, his younger brother, Jose Hernandez (the victim’s brother), and their friend Jose Banuelos (the victim’s friend) were walking down Elk Grove Boulevard to another friend’s house. A green car driven by Joel Hundley-Vazquez passed them. The car had about five people inside. After the car passed them, it stopped and then made a U-turn back toward them. Two of the passengers, defendant and Alan Calderon, walked up to the victim, the victim’s brother, and the victim’s friend. Defendant told the victim, “Give me all of your stuff, or I’ll shoot you or I’ll cap you.” The victim saw defendant lift his shirt in the middle toward his waistband. At that time, the victim’s brother saw the brown handle of a gun. The victim’s brother was scared for the victim because the victim was closer to defendant than he was. The victim handed over his gold chain with pendant, his gold-toned watch, and his cell phone. Defendant and Calderon walked back to the car, which then took off. The victim, the victim’s brother, and the victim’s friend continued walking toward their friend’s house, and then the victim’s brother called police. The same day, police began investigating the robbery. Police learned from a cell phone company the current residential location of the victim’s stolen cell phone. Police went to the residence the next day (May 20, 1014) at 1:00 p.m. and saw defendant, his cousin Joshua Guerra (defendant’s cousin), and Calderon standing outside. A red car picked up the three. Police stopped the car. Defendant had the victim’s cell phone in his pants’ pocket and was wearing the victim’s watch. Defendant’s cousin was wearing the victim’s gold chain with pendant. Inside the car police found the cell phone of defendant’s cousin. The cell phone had photographs of the cousin and also had photographs of defendant and Hundley-Vazquez. One photograph that was dated May 19, 2014, and time stamped 3:53 p.m. depicted defendant’s cousin wearing the victim’s gold chain with pendant. Another photograph dated that same day and time stamped 10:00 p.m. depicted defendant wearing the victim’s wristwatch and the