California Court of Appeal Jan 25, 2016 No. D066986Unpublished
Filed 1/25/16 P. v. Gauthier CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066986
Plaintiff and Respondent,
v. (Super. Ct. No. SCE326316)
BERTHO GAUTHIER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, John M.
Thompson, Judge. Affirmed.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.
Taylor and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Bertho Gauthier, was convicted of several counts of
armed robbery and sentenced to a term of 38 years four months in prison. Police arrested
defendant on the same day he robbed three liquor stores in San Diego County.
Investigators soon determined that defendant was the suspect in a number of earlier
armed robberies. Defendant's fingerprints matched a latent fingerprint left at the scene of
a robbery committed a few months prior to his arrest in San Marcos, California, and
ballistic evidence linked a gun found in defendant's car to three other armed robberies
committed in San Diego and Orange Counties. Police investigators also found video
surveillance footage of two robberies of Little Caesar's Pizza restaurants (Little Caesar's)
in northern San Diego County, which linked defendant to those robberies.
Defendant contends the evidence presented at trial is insufficient to support an
enhancement for deliberately discharging a firearm during one of the robberies. He
claims victim testimony shows the gun was fired accidentally rather than intentionally.
Defendant also contends the record lacks sufficient evidence he robbed the two Little
Caesar's Pizza restaurants in northern San Diego County. According to defendant,
witness descriptions of the suspect in the Little Caesar's robberies and surveillance video
footage showing a masked man resembling defendant is not sufficient evidence he robbed
the two Little Caesar's. We find sufficient evidence of the enhancement and the
robberies. Accordingly, defendant's convictions are affirmed.
2
PROCEDURAL OVERVIEW
In July 2013, the San Diego County District Attorney charged defendant with 12
counts1 of robbery in violation of Penal Code section 211;2 four counts of making a
criminal threat;3 and one count of assault with a firearm.4 The prosecution alleged a
number of sentence enhancements, including personally discharging a firearm as to
counts 3 through 7. In late August 2014, six of the counts against defendant, including
all of the counts of making a criminal threat and assault with a firearm, were dismissed
on motion by the district attorney.5 A jury convicted defendant of all 11 remaining
counts of robbery and found true all special allegations relating to those counts. The
court sentenced defendant to a determinate prison term of 38 years four months.
FACTUAL OVERVIEW
Defendant committed nine robberies of shops and restaurants in San Diego and
Orange Counties between October and December of 2012. Defendant is a five-foot
eight-inch tall African-American man who weighs 180 pounds and was 25 years old at
the time of his convictions.
1 Counts 1-10, 12 and 13.
2 All further statutory references are to the Penal Code unless otherwise indicated.
3 Section 422; counts 11, 15, 16 and 17.
4 Section 245, subd. (a)(2); count 14.
5 Counts 7, 11, 14, 15, 16 and 17.
3
A. The Robbery of the Smoke Shack in San Marcos
The first robbery occurred at the Smoke Shack, a tobacco store in San Marcos,
California. On October 12, 2012, a robber approached the owner of the Smoke Shack,
pointed a gun at him, and demanded money from the cash register.6 After the owner
handed over the money, the robber took the owner to the store's bathroom and ordered
the owner to count to 100. The robber left while the owner counted. The owner
described the robber as tan skinned, about 5 feet 10 inches tall and 180 pounds with a
medium build. He described the robber's handgun as being medium caliber, potentially a
nine-millimeter, and having blue painter's tape wrapped around the barrel.
The store had a surveillance system that recorded video of the robbery, which was
shown to the jury. The video showed a robber with tan skin (or an African-American
with a light complexion) dressed in black shoes, a black or dark blue hoodie-style
sweatshirt with the hood pulled up over the back of the head, loose-fitting gray pants and
a loose-fitting gray ski mask that covered his whole face except for the area around his
eyes, which were visible through a single, large eye hole. The mask was draped over the
front of the robber's neck like a bandana. As he entered the store, the robber appeared to
conceal a handgun in a front pocket of the sweater and revealed the gun as he walked up
to the counter. He held a black bag with his left hand and a gun with his right. The
handgun was a black or dark-colored semiautomatic with what appeared to be blue
painter's tape wrapped around the barrel. The black bag had a white tag.
6 All events described from this point on occurred in 2012 unless otherwise noted. 4
A San Diego County Sheriff's deputy reviewed the footage and noticed the robber
was not wearing gloves and touched a glass display case with his bare hand. The deputy
dusted the display case for prints and recovered a fingerprint.
B. The Robbery of the Little Caesar's in San Marcos
A Little Caesar's in San Marcos was robbed on November 4. The robber entered
the restaurant brandishing a handgun as he approached the counter and demanded money.
An employee emptied out a cash register and placed the money into a bag provided by
the robber. The robber then ordered the employee onto the ground and left the restaurant.
The employee described the robber as an African-American male with a dark complexion
and a medium build in his early 30's. He described the gun as being a black handgun,
possibly a nine-millimeter.
Once again, surveillance cameras recorded video footage of the robbery, which
was also shown to the jury. The video footage from the robbery showed an individual
quite similar to the robber of the Smoke Shack, except he was now wearing black gloves
with a noticeable gray lining where the velcro straps would be located on a typical work
glove. The robber carried a black bag for the money, though the bag used in this robbery
was shiny and appeared to be a plastic shopping bag. The robber once again wielded a
black or dark-colored semiautomatic handgun, though this time there was no blue tape
visible on the barrel. He entered the store already holding the gun in his right hand and
the bag in his left. The robber often held the gun sideways when aiming it at the
employee.
5
C. The Robbery of the Inner Limits Store in San Clemente
On November 6, the Inner Limits store in San Clemente, California was robbed.
The robber confronted two employees working near the registers, demanding they give
him money while pointing a black handgun at them. The employees were shocked and
not certain whether they were really being robbed or someone was playing a joke on
them. They did not immediately comply, and the robber fired a shot into a display. The
employees then emptied the two cash registers into a bag provided by the robber. The
robber told the employees to "kiss the ground," and they crouched down on the floor as
the robber left the store. After the robber left, the employees called the police.
Deputies from the Orange County Sheriff's Department responded to the call. A
deputy surveyed the crime scene and noticed copper jacketing from the spent bullet near
the glass case the robber shot. A "40 S & W federal casing" and two bullet fragments
were recovered at the crime scene.
Once again, the robbery was captured on a surveillance camera, and the video was
shown to the jury. The video footage showed a robber with a build and skin tone similar
to the robber of the Smoke Shack and the Little Caesar's in San Marcos. Like the
previous two robberies, the robber wore black shoes, a loose-fitting gray ski mask and
gray pants that were seemingly the same as those worn by the robber of the San Marcos
stores. As in the San Marcos Little Caesar's robbery, the robber here appeared to be
wearing black gloves with a gray lining along the velcro strap. The hooded sweatshirt
worn by the robber was different this time as it was red instead of black or dark blue.
The robber also used a black bag that appeared to have a white tag on it. The gun
6
appeared to be hidden under the bag and was not visible in the video; however, the robber
once again held the bag with his left hand as he entered the store.
D. The Robbery of the Happiness Nails Salon in Vista
The Happiness Nails salon in Vista, California was robbed on November 21. The
robber entered the salon and announced his intent to rob the store. Nobody moved, and
the robber responded by firing a shot into the ceiling from a handgun. The robber then
pointed the gun at a worker behind the cash register and demanded money. The worker
gave the robber all the money in the register, which the robber put into a black bag. After
receiving the money, the robber ordered everybody to the back of the salon and left.
One witness described the robber as being a five-foot five-inch tall African-
American male, though other witnesses described the robber as being 5 feet 8 to 5 feet 9
inches tall. A few days after the robbery, a nephew of one of the salon's employees
discovered a bullet while repairing the salon's air conditioning. The bullet was provided
to the San Diego County Sheriff's Department.
As in the other robberies, surveillance cameras inside the salon captured footage
of the robbery, and the footage was shown to the jury. The physical features of the
robber were similar to the features of the robber at the San Marcos and Orange County
robberies. The robber wore loose-fitting gray pants and a gray ski mask. Unlike the
previous robberies, this time the robber did not wear a hooded sweatshirt but instead
wore what appeared to be a hoodless gray sweatshirt. The robber again wore black
gloves with a gray lining along the velcro straps. The black bag appeared to have a white
tag. Once again the robber held the black bag with his left hand and the gun with his
right. He appeared to conceal the gun under the black bag as he entered the store, before
7
quickly revealing it. The robber also appeared to be holding a white-colored bag around
his gun for shell casings. The surveillance footage shown to the jury was recorded by
playing the original footage on a monitor and recording that footage with a camera,
resulting in a relatively low quality video recording. A San Diego County Sheriff's
deputy who watched the original footage described the bag the robber used to collect
shells as a shopping bag.
E. The Robbery of Roberto's Taco Shop in San Diego
Roberto's Taco Shop in San Diego, California was robbed on December 1. The
robber approached the counter, where the store owner, Fermin Martinez, was working.
The robber pointed a gun at Martinez and demanded money. Another worker, Jorge
Rodriguez was present and gave a short account that is largely similar to Martinez's
testimony.
Martinez initially suspected he was the victim of a prank being played by a
customer who had just left the restaurant. In response to the robber's demands, Martinez
told him to "Take the money yourself." The robber chambered a round in the gun and
asked Martinez, "do you think I'm joking?" At that point, Martinez realized he was
actually being robbed. He opened the cash register and told the robber to take the money.
The robber replied, "No[, y]ou do that" and held out a drawstring bag in one hand while
pointing the gun at Martinez with the other. Martinez asked the robber if he wanted just
the paper dollar bills or the coins as well. The robber responded by asking Martinez if he
thought he was playing around. The robber then pointed his gun downward and fired one
shot. Either before or after the robber fired the shot, Martinez took all of the paper
money out of the cash register and placed it inside the robber's bag. Martinez gave the
8
robber all of his paper currency, but none of the coins. After firing the shot, the robber
told Martinez and Rodriguez to get on the ground and then left the restaurant.
A San Diego police officer responded to the robbery call and recovered a fired
cartridge case from the floor of the restaurant and a bullet from inside one of the
restaurant's walls. The shell casing was from a "Smith and Wesson 40," and the cartridge
was marked "S&W Federal." There was no surveillance footage of the robbery at
Roberto's Taco Shop.
F. The Robbery of the Little Caesar's in Rancho Bernardo
Another Little Caesar's in the northern San Diego County community of Rancho
Bernardo was robbed on December 10. Video surveillance footage showed the robber
standing and pacing around in the restaurant for about 45 seconds before an employee
came out of the back of the restaurant into view of the robber. The robber approached a
counter, pointed a gun at the employee and demanded money from the cash register,
threatening to shoot the employee if he did not hurry. The robber left immediately after
being handed the money without issuing any further instructions to the employee.
The employee saw a white Mitsubishi Eclipse with a spoiler quickly leave the
parking lot shortly after the robbery, leading him to believe the car may have belonged to
the robber. The employee described the robber as being a six-foot four-inch tall African-
American man with light complexion and medium build. The employee was unable to
conclusively identify defendant as the robber at trial, but simply stated: "He looks
familiar." On cross-examination, the employee admitted he was unable to identify a
photograph of the defendant as the robber in a photographic lineup.
9
The robbery was recorded by surveillance cameras and, like the other videos, the
recording of the robbery was played for the jury. The video showed a robber with the
same build and skin tone as in the earlier robberies. The robber appeared to be wearing
the same gray ski mask and gloves as before. In the tape, the robber entered the store
holding a dark-colored semiautomatic handgun in his right hand and a black bag with a
white tag in his left, initially using the bag to conceal the gun from view. The robber
often held the gun sideways while aiming at the employee. The video clearly showed the
robber using a white-colored translucent bag similar to a hairnet to collect any shells
discharged by his handgun.
G. Defendant's Arrest and Trial
Three San Diego area liquor stores were robbed on December 21. Unlike the
previous robberies, the robber did not wear a ski mask but instead drew a fake beard on
his face using makeup. A La Mesa police officer arrested defendant approximately three
hours after the final robbery. The officer found a handgun in the passenger seat of
defendant's rental car. The gun was a "Springfield Armory SC-40" loaded with a 40-
caliber federal bullet in the chamber. One police officer described the gun as being
painted in an olive green color and having blue tape on the barrel. Descriptions of the
gun given by both the prosecution and the defense during closing arguments indicate that
the gun recovered was a multicolored semiautomatic handgun that was dark colored on
the top and green around the handle.
A search of defendant's car revealed goods and money likely stolen from stores
earlier in the day and other evidence. Items found in defendant's car that are of relevance
to this appeal include: a white hairnet similar to that used in the Rancho Bernardo Little
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Caesar's robbery to collect shell casings, a plain black hooded sweatshirt similar to that
worn in the robberies of the Smoke Shack and the two Little Caesar's, a black drawstring
bag with a large golden Michael Jordan jump man logo on the sides that had been turned
inside out so the bag appeared plain black, and a pair of black work gloves with a gray
pattern lining the velcro.
A fingerprint expert with the San Diego County Sheriff's Department testified at
trial that defendant's fingerprints matched a latent fingerprint collected at the Smoke
Shack in San Marcos. A firearms expert with the San Diego County Sheriff's Department
testified that ballistics evidence matched the firearm found in defendant's car to the gun
used in the robberies of the Inner Limits store in San Clemente, the Happiness Nails salon
in Vista, and Roberto's Taco Shop in San Diego.
An investigator with the San Diego County Sheriff's Department in charge of
investigating the robbery of the Little Caesar's in San Marcos opined that based upon
comparisons of surveillance video, he believed the robber in the San Marcos Little
Caesar's robbery was the same person who robbed the Smoke Shack in San Marcos and
the Little Caesar's in Rancho Bernardo.7
At trial, defendant's attorney conceded that defendant committed the final robbery
but argued that evidence tying defendant to the other robberies was insufficient,
7 The investigator did not mention the Smoke Shack by name in his testimony, but his statement that a suspect was linked to the robbery by a fingerprint and the location of the robbery in San Marcos implies that the investigator was talking about the Smoke Shack. The investigator also refers to the robbery of a Little Caesar's within the jurisdiction of the San Diego Police Department. Presumably, he was referring to the robbery in Rancho Bernardo as there are no other robberies of Little Caesar's restaurants within the city limits of San Diego mentioned in the record. 11
particularly the robberies where the only evidence to tie defendant to the robbery was eye
witness descriptions, items found in defendant's car that resembled items worn or used by
the robber, and video footage.
DISCUSSION
A. Standard of Review
On appeal, we review questions of fact under the substantial evidence test. " 'The
test on appeal is whether substantial evidence supports the conclusion of the trier of fact,
not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] The
appellate court must determine whether a reasonable trier of fact could have found the
prosecution sustained its burden of proving the defendant guilty beyond a reasonable
doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) However, whether undisputed
evidence is sufficient to support a conviction is a question of law which the court
determines de novo. (People v Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3.)
"Evidence, to be 'substantial' must be 'of ponderable legal significance . . . reasonable in
nature, credible, and of solid value.' " (People v Johnson, supra, at p. 576.) The
testimony of a single witness that meets these standards is sufficient to support a
conviction "[e]ven when there is a significant amount of countervailing evidence."
(People v Barnwell (2007) 41 Cal.4th 1038, 1052.) "In deciding the sufficiency of the
evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts.
[Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149,
1181.)
12
B. Sufficiency of the Evidence that Defendant Deliberately Discharged his
Firearm
Defendant contends the record lacks sufficient evidence to support his conviction
for intentionally discharging a firearm while robbing Roberto's Taco Shop. Defendant's
argument rests largely upon the testimony of Fermin Martinez, the owner of the
restaurant, and his employee Jorge Rodriguez. Martinez testified in Spanish via a
translator. On direct examination, Martinez was asked multiple times about the point in
the robbery where defendant discharged the gun. When discussing the discharge,
Martinez stated, "the bullet got away from [defendant]" and "the shot went off and got
away from [defendant]." Martinez testified, "[defendant] was just asking me to give him
the money and I did give him the money. I gave him the bills. And that's when I asked
him if he also wanted the coins, at which point he said -- he asked me if I thought he was
playing around. And that's when the shot went off and got away from him." The
prosecutor later asked Martinez if he handed over the money after defendant fired the
gun, to which Martinez replied, "yes." Rodriguez testified that Martinez handed over the
money before defendant fired the gun.
A reviewing court will not disturb a jury's verdict if it is supported by substantial
evidence—evidence that when evaluated in light of the whole record is " 'of ponderable
legal significance . . . reasonable in nature, credible, and of solid value.' " (People v.
Johnson, supra, 26 Cal.3d at p. 576.) " '[T]his inquiry does not require a court to 'ask
itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.' [Citation omitted.] Instead the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
13
fact could have found the essential elements of the crime beyond a reasonable doubt.' "
(Ibid.) In the face of conflicting testimony, it is solely up to the jury to decide which
testimony to credit. (People v. Young, supra, 34 Cal.4th at p. 1181.)
We find that the record contains substantial evidence that defendant intentionally
discharged the firearm. Contrary to defendant's contentions, the circumstances described
by Martinez provide ample motivation for defendant to discharge the firearm. Martinez
initially thought a prank was being played on him and was uncooperative. Martinez
insisted that defendant take the money out of the cash register himself, while defendant
demanded that Martinez remove the money from the register and place it into the bag
defendant was holding in his hand. Martinez then asked defendant if he wanted just
paper currency or the coins as well. Defendant appeared to have been annoyed by this
question as he responded by asking Martinez if he thought he was joking and then
pointed the gun downwards and fired. There are other instances in the record where
defendant discharged a firearm when victims were slow to cooperate and, from these
facts, a reasonable jury could infer that defendant deliberately fired the gun.
Defendant argues he had no reason to fire the gun because Martinez had already
handed him the money. However, there is conflicting evidence on this issue. Some of
Martinez's testimony is phrased in a way that suggest he gave defendant the money
before defendant fired the gun, but Martinez later clarified that it was after the gun was
fired that he gave defendant the money. Rodriguez testified that defendant fired his gun
after Martinez handed over the money. In the face of such contradictory testimony, the
jurors were empowered and capable of determining which testimony to credit and which
to discount.
14
Even if the jurors did conclude that Martinez handed over the money before
defendant fired the shot, there is still reason to conclude that defendant fired the gun
deliberately rather than accidently. As we noted, Martinez had not been entirely
cooperative and defendant asking Martinez if he thought he was playing around just
before firing the shot could be interpreted as an expression of annoyance or exasperation
towards Martinez. From these facts, the jury could have reasonably concluded that
defendant fired a single shot to frighten Martinez in retaliation for Martinez's initially
uncooperative response.
Defendant relies heavily on Martinez's statements that the bullet or shot "got
away" from defendant as evidence that he accidently rather than deliberately discharged
the gun. This is indeed an odd phrase, but it does not clearly convey that the gun went
off accidently and the surrounding circumstances strongly indicate that defendant fired
the gun deliberately as a means of scaring Martinez. In sum, the evidence defendant
deliberately discharged his gun is sufficient to support his conviction.
C. Sufficiency of the Evidence that Defendant Robbed the Little Caesar's
Restaurants
Defendant contends that the record lacks sufficient evidence to support his
convictions of robbing the Little Caesar's in San Marcos and Rancho Bernardo because
the eye witness descriptions, video surveillance, and items found in defendant's trunk do
not disclose any details regarding the identity of the robber or robbers that are distinctive
enough to provide sufficient evidence of defendant's guilt.
15
Once again, the jury's factual determinations will be upheld as long as there is
substantial evidence in the record to support the jury's findings. (People v Johnson,
supra, 26 Cal.3d at p. 576.)
The robber of the San Marcos Little Caesar's was practically an identical twin to
the robber of the Smoke Shack. Except for the addition of the black gloves and a
possibly different bag, the robber in both San Marcos area robberies was dressed the
same and had the same skin complexion and build. Experts for the prosecution matched
defendant to a latent fingerprint left on a display case at the Smoke Shack, and defendant
does not dispute that the prosecution presented substantial evidence of his guilt for the
Smoke Shack robbery. The gloves also appeared to be the same gloves worn in other
robberies (most of which were linked to defendant through ballistic evidence) and found
in the trunk of defendant's car. As in every other robbery, the robber used a dark-colored
semiautomatic handgun and held the gun in his right hand and the bag in his left. The
robber also wore a black hooded sweatshirt similar to the one worn in the Smoke Shack
and Rancho Bernardo robberies and discovered in the trunk of defendant's car.
In isolation none of the robber's clothing, physical features, or behavior are
unusual or rare, but when put together the result is a compelling case that the robber who
robbed the Little Caesar's in San Marcos is the same robber who robbed the Smoke Shack
and other stores and restaurants in the San Diego area. In other words, in the context of
the entire record, the video footage provides substantial evidence that defendant
committed the robbery.
We also find the prosecution presented sufficient evidence that defendant robbed
the Little Caesar's in Rancho Bernardo. The robber of the Rancho Bernardo Little
16
Caesar's bore a strong resemblance to the robber in the other videos. He was similar to
defendant in physical characteristics and appeared to be wearing the same mask and
gloves defendant wore in most of the other robberies. He also wore a plain black hoodie
that may be the same as worn in other robberies and found in the trunk of defendant's car.
As in the other robberies, the Rancho Bernardo robber used a black bag to carry stolen
money, which may be the same one found in defendant's car. The black bag in the video
had a noticeable white tag hanging on it as does the bag in video footage taken from the
robberies of the Smoke Shack, the Inner Limits store, and the Happiness Nails salon,
which were linked to defendant by additional forensic evidence. As in the other
robberies, the robber used a dark-colored semiautomatic handgun, which he held with his
right hand, while holding the bag with his left. Like the other Little Caesar's robbery, the
robber frequently held the gun sideways while aiming it at his victim. These
circumstances are sufficient to support defendant's conviction for the robbery of the
Rancho Bernardo Little Caesar's.
In support of his theory that the record lacks sufficient evidence of guilt in the two
robberies not tied to him by forensic evidence, defendant cites various discrepancies in
the record which he contends show there is no discernable pattern to the robberies that
could lead a reasonable juror to find he committed the Little Caesar's robberies. These
discrepancies include: variations in physical descriptions of the robber by witnesses; the
robber not using a glove in the robbery of the Smoke Shack in San Marcos; the robber
using a white bag to collect shells in the Happiness Nails salon and Rancho Bernardo
Little Caesar's robberies, but not in the Roberto's Taco Shop robbery that happened
chronologically between them; the robber using a plastic shopping bag rather than a
17
fabric drawstring bag in the San Marcos Little Caesar's robbery; the lack of visible blue
tape on the handgun in all the robberies between the Smoke Shack robbery and
defendant's arrest; witnesses describing the robber's semiautomatic handgun as black
when the gun recovered from defendant's car was at least partially colored green; and the
robber not wearing gloves or a ski mask or using a white hairnet to collect shells during
the three liquor store robberies on the day defendant was arrested.
There is indeed evidence in the record that could support a theory that defendant
did not commit all of the robberies, but there are also reasonable explanations for these
discrepancies that reconcile them with the prosecution's theory of the case. Variations in
the physical description of the robber given by witnesses can be attributed to faulty
memory. The prosecution suggested that variations in the type of bag used, the use of
gloves, et cetera could be attributed to defendant experimenting with different tools and
methods. As to discrepancies regarding the gun, the prosecutor suggested that while
holding the gun, defendant likely concealed most of the green portion of the gun with his
hand and the witnesses only saw the top portion of the gun, which was black or dark
colored. The prosecutor also postulated that defendant removed most of the blue
painter's tape from the barrel after the first robbery, but neglected to remove a little bit at
the bottom of the barrel, which was noticeable upon close examination but not in
surveillance videos or to witnesses of the robberies.
Our task is not to reweigh the trial evidence but to determine whether the evidence
of guilt meets the minimum needed for a reasonable trier of fact to pronounce the
defendant guilty. The similarities between the robber of the Little Caesar's and
defendant's appearance and behavior in surveillance videos of other robberies linked to
18
him by other evidence, as well as items found in defendant's car, provides sufficient
evidence of his guilt.
DISPOSITION
The judgment of the trial court is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
19
AI Brief
AI-generated · verify before citing
Holding. The court held that sufficient evidence supported the defendant's convictions for robbery and the sentence enhancement for the intentional discharge of a firearm. The jury was entitled to credit evidence of the defendant's deliberate conduct over his claims of accidental discharge and to rely on the totality of circumstantial evidence to identify the defendant as the perpetrator of the robberies.
Issues
Whether there was sufficient evidence to support the sentence enhancement for the intentional discharge of a firearm during a robbery.
Whether there was sufficient evidence to identify the defendant as the perpetrator of two specific robberies of Little Caesar's restaurants.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We find sufficient evidence of the enhancement and the robberies.”
“In the face of conflicting testimony, it is solely up to the jury to decide which testimony to credit.”
“In sum, the evidence defendant deliberately discharged his gun is sufficient to support his conviction.”