Filed 11/14/13 P. v. Crawford 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                             C071437

                   Plaintiff and Respondent,                                (Super. Ct. No. 09F07975)

         v.

ERIN CRAWFORD,

                   Defendant and Appellant.



         In May 2012, a jury found defendant Erin Crawford guilty of second degree
robbery, during which he personally used a gun. The trial court sentenced him to 12
years in state prison.

         Defendant’s focus on appeal centers on a photographic exhibit of him, in which
he appears to be holding a gun. He contends the trial court abused its discretion under
Evidence Code section 3521 in admitting the photo into evidence, and trial counsel was
ineffective for failing to argue other bases for excluding it. We shall affirm the judgment.



1 Undesignated statutory references are to the Evidence Code.



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                 FACTUAL AND PROCEDURAL BACKGROUND

       In August 2009, the pregnant victim and her husband had returned to their home
after an outing at about 9:45 p.m. They parked the car in their stall immediately in front
of their apartment, and began to unload the trunk. As her husband handed her purse to
the victim, two men approached them from behind. Both were masked. One of them
snatched the purse from the victim with sufficient force to bruise the shoulder on which
she had started to place the strap. The robber holding the purse jumped over a nearby
fence. The remaining robber was unsuccessful in his first attempt to scale the fence. As
the husband started to approach him, the second robber pulled up his shirt. The victim
heard him tell her husband that he had a gun, but did not see one. Her husband, who did
not recall either of the robbers saying anything, could see what appeared to be a “silver-
looking gun” (of the type that loads from the bottom with a magazine and has a slide on
the top) tucked into the second robber’s waistband. The second robber pulled it out
slightly, indicating that the husband should not pursue him. The armed robber then
successfully jumped over the fence.

       Neither the victim nor her husband could identify the robbers because of the
masks. To the husband, the first robber appeared thinner and the second appeared out of
shape. The purse-snatcher was about six feet tall, and the armed robber was a couple of
inches shorter. The husband had been approached a couple of days earlier out of the blue
by a couple of Latino neighbors when he was outside, who had engaged him in what he
thought was a “suspicious” conversation. Because he saw these neighbors drive away at
a high rate of speed after the robbery, he initially described the robbers as being Latino
during the 911 call. (These neighbors actually were Indian, and were in fact attempting
to chase down the robbers, but lost them in the darkness of a field.) However, in talking
to the police later, the husband “was pretty positive” the robbers were “two Black males”
because “their hands look[ed] dark.” The victim also saw dark skin through the eyeholes



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of the masks. Although she could not identify defendant in court as one of the robbers,
she thought his eyes protruded in a similar fashion to one of the robbers.

       The victim had run away, screaming for help while dialing 911 on her cell phone.
One of the neighbors was standing outside talking on his cell phone when she caught his
attention. Based on the skin color of their exposed wrists, he believed the robbers were
“two Black males.” Before the second robber had vaulted the fence, he removed his
mask and the neighbor could see his face momentarily, and his dreadlocked hair. He was
about 100 feet away. However, as he admitted to the police, it was dark and he could not
get a good look.

       On their return, the Indian neighbors found a cell phone at the base of the wall
where the robbers had scaled it. They gave it to the police, who were talking to the
neighbor who had seen the one robber’s face. The neighbor looked at the cell phone’s
“wallpaper” and recognized it as a picture of the robber he had just seen. The neighbor
later selected defendant’s picture in a photo lineup that police had prepared after
identifying defendant as the person owning the phone; the neighbor was 60 percent
certain of the identification.

       In examining the Kyocera cell phone, the police determined there had been an
exchange of calls between defendant and his then-girlfriend shortly before the robbery.
The girlfriend also attempted to call the phone later on the night of the robbery. There
was a photo stored to the cell phone a week earlier. It showed defendant holding what
appeared to be a silver gun. In the opinion of the investigating detective, this was a real
gun because a replica typically has a different-colored tip, usually orange. She could not
tell from the picture if it was an “airsoft” gun (one which fires air-pressured rounds).

       When interviewed in October 2009, defendant asserted that he had lost the cell
phone soon after buying it. At trial, defendant testified the lost phone was a different
one. His girlfriend had bought the recovered cell phone for him, and had playfully seized

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it from him on the day before the robbery. He believed it was still in her possession on
the day of the robbery, when he went to dinner and a movie with his girlfriend and her
family. The gun in the picture of him was a BB gun that was in his girlfriend’s
possession; just before taking the picture, she had pretended to threaten to kill him with it
if he ever were unfaithful to her. When she saw that he took her seriously, she asked him
to pose with it because she found “bad boys” arousing. She took the gun back after
photographing him. Defendant never felt the need to have his former girlfriend produce
the BB gun in his defense.

                                      DISCUSSION

       Before trial, defense counsel sought to exclude the photo of defendant with the
gun, asserting “No gun was ever recovered from the scene of the robbery. No gun was
ever recovered from [defendant’s] home or person.” The prosecutor argued that the
victim’s husband had described what appeared to be a silver semiautomatic handgun, and
defendant was holding what appeared to be a silver semiautomatic handgun in the photo.
Defense counsel pointed out that the prosecution had never even established a foundation
for the photo by asking the husband whether the gun in the photo looked like the one he
had seen in the robbery. In admitting the photo, the trial court concluded it was highly
probative because it showed defendant possessed a gun similar in attributes to the one
that the husband had described. It did not find any prejudice substantially outweighing
this probative value.

       Defendant argues that without any evidence that it was the same gun, the photo
did not have any probative value other than the impermissible inference that because he
posed in the past with what appeared to be a gun, he was the robber holding a similar
gun. As a result, trial counsel was ineffective for failing to move to exclude the photo
on this basis pursuant to section 1101 as improper character evidence. Defendant also
contends the trial court abused its discretion in balancing what he considers minimal at


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best probative value against the substantial prejudice of depicting him as a person who
would pose with a gun.

       Other than debate general principles of relevance and prejudice, neither of the
parties discuss directly relevant precedent involving the admission of evidence of a
defendant’s possession of weapons. As is succinctly explained in People v. Rinegold
(1970) 13 Cal.App.3d 711, 720-721, “Where the prosecution’s evidence is circumstantial,
an implement by means of which it is likely that a crime was committed is admissible in
evidence if it has been connected with the defendant [citations]. If the specific type of
weapon used to commit a homicide is not known[,] any weapons found in the defendant’s
possession after the crime that could have been employed are admissible. There need
[not] be [any] conclusive demonstration that the weapon in defendant’s possession was
the murder weapon. But if the prosecution relies on a specific weapon or type, it is error
to admit evidence that other weapons were found in the defendant’s possession, as this
tends to show not that he committed the crime but only that he is the sort of person who
carries deadly weapons (People v. Riser [(1956)] 47 Cal.2d 566, 576-577; [citations]).
[¶] The distinctions set forth in [Riser] are not exclusively applicable to homicide cases
[citations] and provide a useful guide for the instant case where we are not concerned
directly with the admission of the weapon but testimony that the day before the assault,
[the] defendant was seen with a revolver.” (Some italics omitted, our italics added.) As a
result, “testimony that defendant had a revolver the day before the assault . . . would tend
to connect defendant with the crime” and was relevant on that basis. (Rinegold, at
p. 721.) Similarly, in Riser, the defendant’s possession of a holster for a gun consistent
with the caliber of the unknown murder weapon was “clearly admissible” (Riser, supra,
47 Cal.2d at p. 577) because it tended to connect the defendant with the crime and was
thus relevant. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 2d ed. 1982) § 21.4,
pp. 551-552.) Consequently, defendant is incorrect that the photo is irrelevant except on



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the inadmissible basis of improper character evidence,2 and trial counsel accordingly
could not have been ineffective in failing to raise this inapplicable ground for exclusion.
(People v. Thompson (2010) 49 Cal.4th 79, 122 [no duty to make futile objections]; People
v. McPeters (1992) 2 Cal.4th 1148, 1173 [no duty to make frivolous objections].)

       As for his argument regarding the trial court’s application of section 352, the
photo had more than minimal probative value under the above principles. Although
defendant adverts to the possibility that it was not necessarily a real gun, this ultimately is
beside the point. The gun displayed during the robbery also could have been a replica,
but it was used to good effect in thwarting resistance from the husband. The relevance
lay in defendant’s possession of a similar implement, regardless of whether either of them
was a real gun or not. (The use of even a replica to effect a robbery is sufficient to
support a finding of personal use (People v. Monjaras (2008) 164 Cal.App.4th 1432,
1437).) We also do not find that there was a high risk that the jury would decide the
case based on an emotional bias against defendant unrelated to the evidence and issues
(People v. Doolin (2009) 45 Cal.4th 390, 439) for photographing himself with a gun.
Again, this is not an act illegal of itself and we are certain that there are numerous
otherwise law-abiding citizens whose pride in gun ownership would be reflected through
photographing themselves with their weapons. In rejecting the merits of defendant’s
substantive claim, we necessarily reject his further argument that admission of the photo
evidence had the result of depriving him of due process.

       Furthermore, this was not a case in which the guilty verdict could only be the
product of the challenged photo evidence. Defendant’s alibi and explanation that his cell



2 Moreover, possession of weapons—not being an illegal act per se—does not even
constitute evidence of a character trait excluded pursuant to section 1101 unless the
prosecution is seeking to introduce it as proof of intent (1 Jefferson, Cal. Evidence
Benchbook, supra, § 21.4, p. 548), which was not the situation in the present case.

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phone was in his girlfriend’s possession did not begin to account for the presence of his
Kyocera cell phone beneath where the robbers scaled the wall, and the exchange of phone
calls with his girlfriend just before the robbery, evidence of which was stored on that
phone, along with the photo at issue. Even if the identification evidence otherwise was
not the strongest, we are convinced beyond a reasonable doubt that the verdicts would not
be different if the photo evidence were to be excluded.

                                      DISPOSITION

       The judgment is affirmed.


                                                              BUTZ                   , J.



We concur:



             NICHOLSON             , Acting P. J.



             HULL                  , J.




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