P. v. Perez

Filed 10/23/17 P. v. Perez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICARDO PEREZ,
Defendant and Appellant.
G053299
(Super. Ct. No. 13CF0897)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed.
Marcia R. Clark, 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, Theodore M. Cropley
and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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INTRODUCTION
Defendant Ricardo Perez appeals from the judgment entered after a jury
found him guilty of one count of carjacking and three counts of second degree robbery.
The jury also found true the sentencing enhancement allegation that defendant personally
used a firearm in the commission of the carjacking offense and in two of the second
degree robbery offenses. Defendant admitted prior conviction and prior prison term
enhancement allegations.
We affirm. For the reasons we explain, defendant’s argument that
insufficient evidence supported his conviction as an aider and abettor in the second
degree robbery of Juana Perez (charged as count 4 in the amended information) is
without merit. The trial court did not err by refusing defendant’s request that the jury be
given a pinpoint instruction stating that a pellet gun is not a firearm within the meaning of
Penal Code section 16520. (All further statutory references are to the Penal Code.)
FACTS
At 10:00 a.m. on November 19, 2012, Arnold Feria manually opened the
door to his garage in the alley near his Anaheim apartment building to retrieve his car to
run an errand. After opening the garage door, he drove his black Honda Accord out of
the garage, and left the car in park while he got out of the car to close the garage door.
As he was closing the garage door, Feria noticed a “couple,” later identified
as defendant and his co-defendant, Andrea Brandon, walking up the alley toward him.
Feria described them as a couple because “[t]hey were walking close together, very close,
like a couple would.” Brandon stopped walking when she reached the front passenger
side of Feria’s car. Defendant continued walking to the rear of the car on the driver’s
side where, about three or four feet away from Feria, defendant pulled out a
semiautomatic black metallic gun and aimed it at Feria, cursed at Feria in Spanish, and

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said, “give [me] the car keys.” While “[s]tanding there looking,” Brandon did not say or
do anything that would indicate she was surprised by what was happening.
Feria fumbled in his pockets, forgetting that the car key was in the ignition
of his running car. Feria handed over his house keys. As defendant started to get into the
driver’s seat of Feria’s car, and while continuing to point the gun at Feria, he demanded
Feria’s wallet; Feria turned over his wallet. Meanwhile, Brandon tried to open the door
to the front passenger side of Feria’s car. She told defendant, “let me in, let me in.”
Defendant leaned over to manually unlock the front passenger side door for Brandon.
She opened the door, and, as she entered the car, smiled at Feria. Feria found it odd that
Brandon would be so “calm and collected” to smile at him under the circumstances.
Feria watched defendant and Brandon drive away in his car.
That same day, around 3:00 p.m., Sarah Arias and her mother-in-law were
in the parking lot of a shopping mall, putting bags in the trunk of her mother-in-law’s car,
when a black Honda pulled up and parked next to them. Arias thought it odd that the car
had pulled up next to them because they had parked far away from the mall and there
were many empty parking spots in the area. She saw the side profile of a woman in the
driver’s seat; the woman did not get out of the car. Later, Arias identified Brandon as
that woman in a photographic lineup.
As she was putting bags into the trunk, Arias felt someone tugging her
black leather Coach purse and heard a male voice say, “give me your purse.” She looked
up and saw a man, whom she later identified as defendant, holding a gun with both
hands. Arias released her grip on the purse so defendant could take it. Defendant took
Arias’s purse and got into the car on the passenger side; the car drove off.
The following morning, Juana Perez was walking in Santa Ana when a
person came quickly toward her from a parking lot; Juana Perez could see a black car
parked in that lot. The person said, in what sounded like a female’s voice, “[g]ive me
your handbag.” The person pointed a gun at Juana Perez’s forehead. The person then

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grabbed Juana Perez’s purse containing her identification, makeup, and money, ran to the
black car in the parking lot, got into the driver’s side of the car, and closed the car door.
Two minutes later, Juana Perez saw that same person get back out of the car and start
running away while holding the stolen purse. She saw a tall man get out of the front
passenger seat of the car and run after the person who had her purse. The person who
took Juana Perez’s purse returned to the car five or ten minutes later alone and “grabbed
some things out of the back seat,” and “[r]eally nervously . . . took off running again.”
Juana Perez did not see the tall man again.
That morning, Dionicio Mendoza was cutting a lawn in the area where
Juana Perez was robbed when he heard a man scream twice. Mendoza saw a man get out
of a black car and shout “stop, groy, be careful.” 1
He saw a woman run and the man run
after her and catch up to her. Then he saw them run away together.
The black car in the parking lot was later identified as the car stolen from
Feria the day before the robbery of Juana Perez. In support of the defense case at trial, a
private investigator, Joseph Szeles, testified he found a pellet gun on the top shelf of a
closet in defendant’s mother’s home.
PROCEDURAL HISTORY
Defendant was charged in an amended information with one count of
carjacking Feria, in violation of section 215, subdivision (a) (count 1); one count of
committing second degree robbery against Feria, in violation of sections 211 and 212.5,
subdivision (c) (count 2); one count of committing second degree robbery against Arias,
in violation of sections 211 and 212.5, subdivision (c) (count 3); and one count of
1
Mendoza testified initially that he also heard the man say something to the effect of
“no, no” and “what you did was wrong, stop.” He later clarified, however, that he did not
hear those words but just heard the man shout “stop, groy, be careful,” further noting,
“that’s all he said.”

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committing second degree robbery against Juana Perez, in violation of sections 211 and
212.5, subdivision (c) (count 4).2
As to counts 1, 2, and 3, the information alleged
pursuant to section 12022.53, subdivision (b) defendant personally used a firearm within
the meaning of sections 1192.7 and 667.5. The information further alleged, pursuant to
section 667, subdivisions (d) and (e)(1) and section 1170.12, subdivisions (b) and (c)(1),
that he was previously convicted of a serious and violent felony and a strike offense and
had served two prior prison terms within the meaning of section 667.5, subdivision (b).
The jury found defendant guilty of all four counts and found the personal
use of a firearm sentencing enhancement allegations true. Defendant admitted the prior
conviction and prison term enhancement allegations. The trial court sentenced defendant
to a total prison term of 32 years four months. Defendant appealed.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE SUPPORTED DEFENDANT’S CONVICTION ON COUNT 4 ON A
THEORY OF AIDING AND ABETTING.
With regard to the robbery of Juana Perez, charged as count 4 in the
amended information, defendant does not argue there was insufficient evidence a robbery
had occurred or that defendant was present at the scene of that robbery. He solely argues
there was insufficient evidence he aided and abetted that robbery. For the reasons we
explain, defendant’s claim lacks merit.
The aiding and abetting doctrine that “one may be liable as an aider and
abettor ‘when he or she aids the perpetrator of an offense, knowing of the perpetrator’s
unlawful purpose and intending, by his or her act of aid, to commit, encourage, or
2
The information also charged Brandon with counts 1 through 4, and charged Brandon
alone with additional counts of receiving stolen property in violation of section 496,
subdivision (a) and of theft of lost property in violation of section 485. Brandon is not a
party to this appeal and is only referenced to provide relevant background information.

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facilitate commission of the offense, “snares all who intentionally contribute to the
accomplishment of a crime in the net of criminal liability defined by the crime, even
though the actor does not personally engage in all of the elements of the crime.”
[Citation.]’ [Citation.] Aiding and abetting does not require participation in an
agreement to commit an offense, but merely assistance in committing the offense.”
(People v. Morante (1999) 20 Cal.4th 403, 433.)
Substantial evidence showed defendant aided and abetted the robbery of
Juana Perez. Defendant and Brandon together successfully carjacked and robbed Feria at
gunpoint the previous morning, and robbed Arias later that afternoon. The next morning,
Brandon approached Juana Perez while defendant waited for Brandon in the black car
which was parked in a nearby parking lot. After Brandon returned to the black car with
the purse, she got inside and closed the car door. Two minutes later, Brandon got out of
the car and started running away. Defendant shouted “stop, groy be careful” and ran after
her. When he caught up to her, he did not stop her but continued to run away from the
scene of the robbery with her. Defendant never returned to the car. Thus, defendant’s
participation in the robbery of Juana Perez extended beyond his mere presence.
In his opening appellate brief, defendant cites evidence that he appeared
angry at Brandon as she fled the scene as showing that “Brandon impulsively decided to
steal Perez’s purse without consulting [defendant] and that he was angry with her for
making such a risky move.” We cannot reweigh the evidence. And no evidence shows
why Brandon ran away from the car or why defendant shouted at her. The jury found
defendant aided and abetted the robbery of Juana Perez and substantial evidence
supported that finding.

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II.
THE TRIAL COURT DID NOT ERR BY FAILING TO GIVE A PINPOINT INSTRUCTION
REGARDING PELLET GUNS.
Defendant contends the trial court erred by denying his request to give a
pinpoint instruction to the jury stating that a pellet gun is not a firearm in light of
evidence that a private investigator found a pellet gun in defendant’s mother’s linen
closet which Szeles said looked like a semiautomatic handgun. Defendant’s argument is
without merit.
A defendant is entitled, on request, to instructions that “pinpoint” the theory
of the defense case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142; People v.
Canizalez (2011) 197 Cal.App.4th 832, 856.) However, when the pattern instructions
fully and adequately advise the jury on a particular issue, a pinpoint instruction on that
point is properly refused. (People v. Canizalez, supra, 197 Cal.App.4th at p. 857.)
Here, the trial court instructed the jury with CALCRIM Nos. 3115 and
3146, in each of which the following definition of a firearm was provided: “A firearm is
any device designed to be used as a weapon, from which a projectile is discharged or
expelled through a barrel by the force of an explosion or other form of combustion.”
(Italics added.)
At trial, Szeles testified as follows regarding a pellet gun:
“Q . . . [Y]ou said this was a pellet gun. How do you know that this item
is a pellet gun as opposed to a firearm?
“A The base of what would be the magazine is threaded for a compressed
air cartridge to go into the magazine, which is what is used to propel the pellet out of the
weapon.
“Q Okay. Is there anywhere on that particular item to put real bullets?
“A No, there’s not. There is no firing pin. It could not be used as a
handgun with bullets.” (Italics added.)

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The trial court denied defendant’s request that the jury be given the
following pinpoint instruction: “A pellet gun is not a firearm, pursuant to Penal Code
section 12022.53(b).”
The trial court did not err. Defendant’s pinpoint instruction that pellet guns
are not firearms was properly refused because CALCRIM Nos. 3115 and 3146 fully and
adequately advised the jurors on the definition of a firearm. Szeles’s testimony
established that a pellet gun would not fall within that definition because compressed air
propels pellets out of a pellet gun; they are not discharged via combustion or an
explosion. As defendant’s pinpoint instruction was unnecessary, the trial court did not
err in refusing to give it. (People v. Bolden (2002) 29 Cal.4th 515, 558 [a trial court need
not give a pinpoint instruction that merely duplicates other instructions].)
Even if the trial court erred in refusing to give defendant’s proposed
pinpoint instruction, defendant suffered no prejudice. Under People v. Watson (1956) 46
Cal.2d 818, 836, “a ‘miscarriage of justice’ should be declared only when . . . it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” In this case, it was not reasonably probable that a
result more favorable to defendant would have been reached in the absence of the alleged
error. During closing arguments, defendant’s trial counsel reiterated that a pellet gun
does not qualify as a firearm for purposes of the firearm sentencing enhancement
allegations. Defendant’s trial counsel stated: “No gun was ever recovered in this case.
No firearm,” and added that a pellet gun, however, was found at defendant’s home.
Defendant’s counsel stated, “you must make a separate decision of whether the People
have proven that he used a firearm. Again, a firearm has a specific term. Ain’t a pellet
gun, ain’t a paintball gun. It has to be a gun that shoots bullets through explosion. A

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pellet gun is not a firearm.” The prosecutor did not argue otherwise. On this record,
even assuming error, defendant suffered no prejudice.
DISPOSITION
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.

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