People v. Simmons CA3

Filed 2/24/21 P. v. Simmons CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C089678

Plaintiff and Respondent, (Super. Ct. No. 16FE008671)

v.

THEO L. SIMMONS,

Defendant and Appellant.

A jury convicted defendant Theo L. Simmons of twice robbing a pharmacy with his codefendant D.C., and found defendant used a firearm for the first robbery. On appeal, defendant argues the trial court erroneously admitted a portion of his jail visit conversation into evidence, in violation of Evidence Code section 356.1 He further

1 Undesignated statutory references are to the Evidence Code.

1

argues that he received ineffective assistance of counsel because his attorney failed to request an instruction on the lesser included enhancement of the personal use of a deadly weapon other than a firearm. Defendant contends these errors taken together rendered his trial fundamentally unfair under the Fourteenth Amendment. We affirm. FACTUAL AND PROCEDURAL HISTORY The First Robbery One afternoon in December 2015, defendant and D.C. entered a pharmacy and jumped over the pharmacy counter. Defendant thrust a gun into the pharmacy technician’s side and pushed her around the pharmacy, demanding certain drugs. The gun was silver, appeared to be metal, and looked real. Because the technician thought the gun was real, she felt afraid. She gave defendant and D.C. the medicine and they left in a waiting vehicle. D.C. told law enforcement that defendant had used a small, silver semiautomatic handgun during the robbery, which the driver of the getaway car had handed to defendant prior to the robbery. Although D.C. did not touch the gun, hear it cocked, or see it loaded, he believed defendant’s gun was real based on the size of the gun’s barrel and his familiarity with real firearms and BB guns. It appeared to him to be a .25- or .22-caliber handgun. While discussing this case on a recorded jail phone call, a visitor asked defendant if he had a gun, and defendant responded, “Yup.” Defendant’s firearms expert was unable to tell from the surveillance footage of the robbery whether it was a real gun or a fake gun, such as an airsoft, BB, or pellet gun. The detective also could not determine whether the gun was real or fake from the footage. The pharmacist and pharmacist technician said the gun appeared real but could not tell whether it was a real gun or a BB gun.