(Santa Clara County Super. Ct. No. CC788784)
The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
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Defendant Kennard Isaiah Love was convicted after jury trial of four counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)),*fn1 four counts of assault with a firearm (§ 245, subd. (a)(2)), two counts of making criminal threats (§ 422), and two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury further found true allegations that defendant personally used a handgun during the commission of the robbery, assault, and criminal threats offenses. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) The trial court sentenced him to 28 years in prison.
On appeal defendant contends that the trial court abused its discretion and denied him his constitutional rights to present a defense, due process, and a fair trial when it denied his request to show an imitation firearm to complaining witnesses and to present expert testimony on imitation firearms. Defendant also contends that the court erred when it imposed punishment on both counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)). We agree with defendant's sentencing contention, but find no other error or abuse of discretion. Therefore, we will order the judgment modified by staying the punishment imposed on one firearm possession count, and affirm the judgment as so modified.
Defendant was charged by third amended information with six counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 1, 4, 7, 11, 13, & 15), two counts of attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); counts 17 & 18), three counts of possession of a firearm by a felon (§ 12021, subd. (a)(1); counts 2, 3, & 10), five counts of assault with a firearm (§ 245, subd. (a)(2); counts 5, 8, 12, 14, & 16), and two counts of making criminal threats (§ 422; counts 6 & 9). The information further alleged that defendant personally used a handgun during the commission of the offenses in counts 1, 4 through 9, and 11 through 16. (§§ 12022.53, subd. (b), 12022.5, subd. (a).)*fn2
As part of his motions in limine, defendant requested that the court allow him to bring an imitation firearm into court to use during the cross-examination of witnesses. Defendant separately moved for leave to call a firearms expert to testify that there is a possibility that the weapon used in the incidents was a replica gun. The court denied defendant's request to show each witness an imitation or replica firearm. However, it deferred its ruling on allowing expert testimony. Defendant then filed a written request for a hearing pursuant to Evidence Code section 402 in order to show the complaining witnesses the imitation firearm outside the presence of the jury. The court denied the request.
On December 1, 2007, Hugo Rodriguez found on Craig's List a Nissan pickup truck he was interested in buying. The listing included a phone number, 408-317-5404, which Rodriguez called. A man said he had the pickup, so Rodriguez arranged to meet the man at an address on Temple Drive in Milpitas. Rodriguez drove to Milpitas with his wife, his three-month-old daughter, and his brother around 7:00 p.m. When Rodriguez could not find the address given him, he called the number again. The man told Rodriguez that he would go out into the street and wait for him. When Rodriguez approached a man in the street, who he identified at trial as defendant, he was directed to drive into an apartment complex.
Rodriguez drove into the complex and asked where the pickup was. Defendant said that his aunt took it to the grocery store. Rodriguez tried to back his car out of the complex but his car died. Defendant quickly approached Rodriguez's car, so Rodriguez began to get out of the car in order to try to talk to defendant. Defendant was wearing a hooded sweater and black gloves. He took a black semi-automatic gun out from under his shirt and put it against Rodriguez's abdomen, forcing Rodriguez back into his car. When Rodriguez sat back down, defendant put the gun to Rodriguez's neck. Defendant said, "give me your money or I'm gonna kill you." Rodriguez was afraid for his family. His brother told defendant that they did not have the money. Defendant then slid the top portion of the gun back as if he was getting ready to shoot it. The gun felt, looked, and sounded to Rodriguez like it was metal, not plastic. He did not see an orange tip at the barrel of the gun. He was sure that it was a real gun. Defendant aimed the gun at Rodriguez's brother and told him that he was going to kill him. Rodriguez said that they did not have the money, but his brother offered defendant the money if defendant would not do them any harm. Rodriguez told his brother to give defendant his money or defendant would kill them. Defendant said "what did you say," and he hit Rodriguez in the corner of his right eyebrow with the butt end of the gun. The resulting injury hurt a lot and bled.
Rodriguez's wife starting crying. His brother told defendant to take the money and leave. Defendant also asked for and took defendant's and his brother's cell phones and wallets and defendant's car keys. Rodriguez lost $3,800 and his brother lost $800. Defendant then told them not to move or he would kill them. Defendant ran towards the apartments and disappeared. After he left, Rodriguez asked a woman for help and called 911. A recording of the 7:23 p.m. 911 call was played for the jury. In the call, Rodriguez described the robber as a Black man, about 30 years old, wearing blue jeans and a white sweater with blue writing, and using a black handgun. When the police arrived, Rodriguez told them everything.
No shell casings or bullets were found during a search of Rodriguez's car and the area around it.
Isidiro Lopez also found a pickup truck on Craig's List on December 1, 2007, that he was interested in buying. He called the phone number listed, 408-317-5404, and agreed to meet a man at some apartments on Rinconada in San Jose. He drove to the address with his friend Freddie Perez, and arrived around 6:30 p.m. The man was not at the address so Lopez called him again. The man said he was with a friend buying food and he told Lopez to wait for him at a corner store. Lopez drove to the store and waited. A man wearing a hooded sweatshirt, who Lopez identified at trial as defendant, approached the car and asked Lopez if he was the person interested in the vehicle. Lopez said that he was.
Defendant opened the car's back door and got in. He took out a black semi-automatic handgun, said go, and waived them into the apartment complex. Defendant put the gun against Lopez's head and told him to give him the money. Lopez said that he did not have any money. Defendant slid the rack back on the gun and said, "give me the money or I'll shoot." Lopez turned around and gave defendant his money. Lopez then saw that defendant was wearing gloves, and that the gun looked like the one police officers use. It did not have an orange tip. Defendant asked Perez for his wallet and both their cell phones and the car keys. Perez said no. The man hit both Perez and Lopez in the head with the butt of his gun. Lopez testified that, judging by the weight of the gun, it was not an imitation, and it had not sounded like a BB gun when defendant slid the rack back. Both Perez and Lopez sustained injuries as a result of being struck by the gun. Defendant got out of the ...