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November 29, 2010


The opinion of the court was delivered by: Rushing, P.J.

P. v. Lovelace CA6


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Terrance Lovelace was convicted of criminal offenses after he stole a car from an salesman during an ostensible test drive. On appeal he challenges the imposition of an enhancement for personal use of a firearm. He contends that the trial court erred by excluding expert testimony to the effect that a firearm such as was described by the victim may be indistinguishable from a "replica" weapon which is not a firearm at all. We find no error in the exclusion of the proposed testimony. We therefore affirm the judgment.


Defendant was charged in a seven-count amended information with (1) carjacking where the victim is a passenger (Pen. Code, § 215), including personal use of a firearm (id., § 12022.53, subd. (b)); (2) fleeing from a police vehicle (Veh. Code, § 2800.1, subd. (a)); (3) drunk driving (Veh. Code, § 23152, subd. (a)); (4) driving with excessive blood alcohol content (Veh. Code, § 23152, subd. (b)); (5) hit-and-run driving with property damage (Veh. Code, § 20002, subd. (a)); (6) driving with suspended license (Veh. Code, § 14601.1, subd. (a)); and (7) a second count of hit-and-run driving with property damage. It was further alleged that he had sustained a prior felony conviction resulting in imprisonment.

The only issue on this appeal concerns the carjacking charge, and more specifically, the firearm-use enhancement. The other charges arose from defendant's exploits while in possession with the stolen vehicle. We summarize the evidence only as it bore on the one charge at issue here.

On March 6, 2009, Farzad Rad was working as a salesman at a San Jose auto dealership. On that day, he testified, defendant appeared at the dealership and expressed an interest in purchasing a 2008 Dodge Charger then on the lot. Rad described defendant as unkempt, unshowered, smelling dirty, redolent of alcohol and marijuana, and seemingly under the influence of alcohol or drugs. However defendant said that "he just got out of the military and received a bonus and he was going to buy the vehicle with the bonus he had received from the military." Rad was unable to verify this claim but, falling prey to his own optimism and pressure from above, agreed to a test drive.

Because defendant said he did not have his license with him, Rad said he would have to drive. They got into the car and Rad drove it to a light rail parking lot "where we demo all our vehicles," i.e., open the doors and display the vehicle's features. As Rad was doing this, defendant said a couple of times "that he already liked the vehicle and if he just got to dr[i]ve it that he was going to buy the vehicle from me that day." After defendant assured him that he was validly licensed to drive, Rad agreed. While defendant drove, he sang along with the radio. Rad had told him to take a very specific route--about a four-minute drive--back to the dealership. Defendant instead drove into an apartment complex, telling Rad that he lived there and that if Rad would wait in the car, he would get his wallet to purchase the car. He drove into a "dead end at a kind of alleyway with apartments on both sides." He asked Rad to help him move two garbage cans that were obstructing the car. Rad took the keys from the ignition and got out of the car. As he moved the cans, defendant ran to the driver's side of the car and got in. Upon realizing that there was no key in the ignition, he got out of the car and came towards Rad, appearing angry.

Rad gave conflicting accounts of ensuing events. On direct examination he testified that defendant simply "came around the vehicle and grabbed the keys from me," telling him to sit on the ground Asked if he noticed any weapons, Rad testified, "I don't think he had any, although I might have thought he did, but he didn't." He suggested that he might have confused the occasion with a robbery he had suffered two weeks earlier at a park.*fn1 He testified, "I've had time to think about it and I believe that he didn't have a weapon." He said that he had been "very scared" and "might have thought that there was something that wasn't there"--though he resisted the suggestion that he had "imagined" a gun. He also said that as defendant approached him, he closed his eyes or flinched out of fear.

Rad acknowledged telling officers that defendant had threatened him with a gun. When shown Officer Baza's handgun after the incident, he had said that defendant's appeared to be "the same type of weapon," though he believed defendant's "had duct tape on it." He did not remember reporting that defendant had "held the gun in his right hand with his index finger on the slide and his middle finger on the trigger." When Detective Mizuhara had questioned him a couple of weeks after the incident, Rad had said there was a weapon. But, he explained, Mizuhara had told him to "think about" the gun "very well because it's very important to the case."*fn2 Rad testified that "starting that day I started questioning myself on what I had seen."

After a series of sidebar conferences the prosecutor confirmed that Rad was not testifying by choice, and asked him why not. After an allusion to missing work, he said that he was "scared of seeing Mr. Lovelace" and didn't want to do so "ever again." He had received a threatening call at work, and though he thought it was probably a co-worker "play[ing] around," he was "actually scared." He and his wife had moved, and he had quit that job, "because that was the last place that that gentleman had seen me working at, and I didn't--I didn't want to have any issues with him after the event." He had also been told by Detective Mizuhara that defendant was a gang member. Rad said he was afraid of gang members. He did not "like testifying against gang members whatsoever."*fn3

Continuing his narrative on direct examination, Rad said that after defendant took the keys he told Rad to sit on the ground, got in the car, rolled down all the windows, turned on the music, and drove away. Rad went into the middle of the street and hailed passing drivers until one of them called 911. An officer approached in his car, and Rad made his first report to police.

Officer Baza testified that he took Rad's initial statement. Rad appeared "nervous," "[v]isibly scared," and was shaking. He reported that the person who took the vehicle had a weapon.*fn4 He described it as a black semiautomatic and a Glock-type firearm.*fn5 He said it looked like Baza's sidearm, a Glock 19, which is a nine millimeter semiautomatic. Rad mentioned silver duct tape on the handle. He said that the person held the gun in his right hand with his index finger on the slide and his middle finger ...

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