Filed 2/6/14 P. v. Roberts CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055303

v.                                                                       (Super.Ct.No. SWF028031)

JEFFRI TYRONE ROBERTS,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. F. Paul Dickerson, Judge.

Affirmed.

         Renee Rich, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Ronald A.

Jakob and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
       A jury found defendant and appellant Jeffri Tyrone Roberts guilty of two counts of

robbery (Pen. Code, § 211; counts 1 & 2)1 and one count of burglary (§ 459; count 3).

The jury also found true that defendant personally used a deadly and dangerous weapon,

to wit, a sledgehammer (§ 12022, subd. (b)(1)), in the commission of the robberies; and

that defendant intentionally damaged and destroyed property of a value exceeding

$65,000 (§ 12022.6, subd. (a)(1)). In a bifurcated proceeding, defendant admitted that he

had suffered one prior serious felony conviction (§ 667, subd. (a)) and two prior serious

and violent felony convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)).

As a result, defendant was sentenced to a total determinate term of five years and a total

indeterminate term of 25 years to life in state prison with credit for time served. On

appeal, defendant contends (1) the trial court prejudicially erred in admitting evidence of

an uncharged robbery, and (2) there was insufficient evidence to support the jury’s true

finding that he personally used a weapon in the commission of the robberies. We reject

these contentions and affirm the judgment.

                                               I

                                FACTUAL BACKGROUND

       Around 11:00 a.m. on December 7, 2008, defendant and his accomplice robbed a

jewelry store at the Temecula Promenade Mall (the Temecula robbery). At the time, two




       1   All future statutory references are to the Penal Code unless otherwise stated.



                                              2
female employees were working.2 Defendant, wearing a hooded sweatshirt, a red

baseball cap and dark sunglasses, and carrying a dark-colored duffel bag, went to a

display case containing the most valuable solitaire diamonds and pulled out a

sledgehammer from the bag.

       Meanwhile, defendant’s accomplice stood in front of the two store employees,

instructing them not to move.3 When a telephone rang, one of the employees turned her

head to look at it, and defendant’s accomplice ordered the employees to put their hands

up. The employees feared for their safety.

       Defendant pounded the jewelry case with the sledgehammer. Because the

tempered glass on the case did not shatter with the first swing of the sledgehammer,

defendant continued pounding the case until the glass gave in. Defendant then grabbed

the diamonds from the jewelry case and placed them in his bag. Defendant and his

accomplice thereafter ran out of the jewelry store toward a J.C. Penny store.

       Christine and Robert McKay were in the mall parking lot near the J.C. Penny store

when they saw two men run out of the mall, carrying something in their hands, and get

into a gray Honda Accord with paper Norm Reeves license plates. Mr. McKay described

one of the men as Black, wearing jeans, a white hooded sweatshirt, and a red baseball

cap; the other, a Mexican male.


       2 A third employee was also working; however, she did not observe the incident
because she was in the back of the store during the robbery.

       3  Defendant’s accomplice was identified at trial as Jason Lattier, and he is not a
party to this appeal.


                                             3
       The robbery was captured on the jewelry store’s surveillance cameras. The video

of the incident was played for the jury. The two store employees were unable to identify

defendant as the robber either in a photographic lineup or at trial. The total amount of the

items taken from the jewelry store was $110,465.

       Defendant was not apprehended at that time, and Riverside County Sheriff’s

Department Investigators began investigating the incident. During the course of the

Temecula robbery investigation, Investigator Jeff Fisher received information from the

Orange County Sheriff’s Department (OCSD) that it was investigating a similar robbery

(the Orange County robbery).

       The Orange County robbery occurred on October 5, 2008, at a jewelry store

located inside a Ritz-Carlton in Dana Point. During the Orange County robbery,

defendant and his accomplice entered the jewelry store between 11:00 a.m. and noon.

Defendant’s accomplice, wearing a hat, dark sunglasses and gloves, and carrying a black

bag, pulled out a gun, pointed it at one of the store employees, and said, “‘You make one

false move and I will shoot and kill you.’” Defendant’s accomplice then ordered the

employee to open the jewelry case and stated that he wanted all of the expensive jewelry.

Defendant stood as a lookout, wearing sunglasses, a hat, and a hooded sweatshirt. When

defendant noticed the store had security cameras, he pulled up the hood of his sweatshirt




                                             4
and told his accomplice to hurry. After taking the jewelry, defendant and his accomplice

ran out of the store and fled the scene in a Ford Mustang.4

       After exhausting leads, OCSD investigators began investigating the getaway

vehicle due to its unique color. After meeting with Ford executives, the investigators

discovered that about 140 vehicles of that particular model were sent to rental car

companies in California. A further investigation revealed that defendant had rented the

type of vehicle used to flee the scene from the Orange County robbery. The investigators

thereafter compared a Department of Motor Vehicle photograph of defendant to the

store’s surveillance video in the Orange County robbery and concluded it was highly

probable defendant was one of the suspects who committed the crime.

       OCSD thereafter conducted a surveillance of defendant from December 17

through 23, 2008. OCSD investigators observed defendant return a rental car on

December 17, 2008, and get into a gray Honda Accord with paper Norm Reeves license

plates. The car was being driven by defendant’s accomplice, Lattier. Defendant and

Lattier then drove to defendant’s apartment complex in Irvine. After watching

defendant’s and Lattier’s actions, OCSD investigators concluded that defendant and his

accomplice were casing several jewelry stores in Southern California, looking for their

next target, and obtaining information about the stores.

       Specifically, investigators observed defendant and Lattier drive to the Westfield

Mall in Carlsbad on December 18, and while defendant stayed in the car, Lattier got out

       4In a separate criminal action, defendant and his accomplice pled guilty to the
Orange County robbery.


                                             5
of the vehicle, looked around the parking lot, and entered the mall where he went into

several jewelry stores. After about 15 minutes, Lattier returned to the vehicle where

defendant had been waiting. On December 20, defendant and Lattier drove to a jewelry

store in the City of Orange, where Lattier entered the store for several minutes, and

returned empty-handed to the waiting car. On December 21, defendant and Lattier

returned to the Carlsbad Westfield Mall. Lattier exited the vehicle, followed a few

minutes later by defendant. Lattier and defendant thereafter began casing one of the

jewelry stores. After a few minutes, they both returned to defendant’s vehicle and left.

They then drove to the jewelry store in the City of Orange, but left after finding the store

closed.

       On December 22, defendant and Lattier again went to the jewelry store in the

Carlsbad Westfield Mall. Lattier entered the mall first, followed by defendant.

Approximately 10 minutes later, defendant and Lattier returned to the vehicle, opened the

trunk of the vehicle, and changed clothing. Defendant grabbed a satchel. Lattier pulled

out a handgun and placed it in his waistband. They then closed the trunk and returned to

the mall. Once inside the mall, they moved their heads in a “swivel” motion—looking

for security guards or other law enforcement personnel. Something “spooked” them, and

they returned to the vehicle wearing sunglasses and baseball caps, despite the rain. They

then drove home, taking a different route back to defendant’s Irvine apartment, through

Riverside County.

       The following day, December 23, OCSD stopped defendant’s vehicle based on

their observations of defendant’s and Lattier’s actions on the previous day. A search of


                                             6
the vehicle revealed evidence from the Temecula robbery, including a dark brown duffel

bag, a sledgehammer, gloves, sunglasses, empty jewelry trays from the Temecula jewelry

store, and a diamond ring.

       Subsequently, OCSD provided Investigator Fisher with information concerning

defendant’s activities. Riverside County Sheriff’s Department deputies presented

photographs of defendant’s vehicle to the McKays. The McKays confirmed that the gray

Honda Accord with paper Norm Reeves license plates matched the vehicle they saw

leaving the Temecula Promenade Mall parking lot. Mr. McKay identified defendant in a

photographic lineup as one of the two men he saw fleeing the scene.

                                             II

                                      DISCUSSION

       A.     Admission of Prior Uncharged Robbery

       Defendant contends the trial court prejudicially erred in admitting evidence of the

uncharged Orange County robbery under Evidence Code section 352.

              1.     Procedural Background

       The People moved in limine for admission of evidence that defendant committed

and pled guilty to the Orange County robbery in October 2008. The People argued the

evidence was admissible to prove intent, identity, and common plan or scheme.

Defendant simultaneously moved to exclude the evidence on the grounds the prior

robbery and charged robbery were not sufficiently similar and the evidence was more

prejudicial than probative. Defendant also argued that introduction of his guilty plea to

the Orange County robbery was more prejudicial than probative.


                                             7
       The trial court ruled the evidence was admissible to show intent and common plan

or scheme. The court did not admit the evidence to show identity. The court also found

that under Evidence Code section 352 the evidence was more probative than prejudicial.

The court also allowed introduction of defendant’s guilty plea to the Orange County

robbery, noting that without the evidence of the guilty plea the court was “actually

painting an incomplete picture for the jury.”

              2.     Legal Principles

       Character evidence in the form of prior uncharged offenses is inadmissible to

prove criminal character or disposition. It is admissible to prove a material fact such as

identity, common design or plan, or intent, however. (Evid. Code, § 1101, subds.(a), (b);

People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Lewis (2001) 25 Cal.4th 610,

636; People v. Kipp (1998) 18 Cal.4th 349, 369; People v. Ewoldt (1994) 7 Cal.4th 380,

393 (Ewoldt), superseded by statute on other grounds, as stated in People v. Britt (2002)

104 Cal.App.4th 500, 505.) To be admissible for this purpose, the charged and

uncharged offenses must be sufficiently alike to support a rational inference of identity,

common design or plan, or intent. (Kipp, at p. 369.) The actual degree of similarity

required depends upon the material fact to be established.

       The highest degree of similarity between charged and uncharged crimes is

required to establish the uncharged crime’s relevancy to prove identity. (Ewoldt, supra, 7

Cal.4th at p. 403.) “For identity to be established, the uncharged misconduct and the

charged offense must share common features that are sufficiently distinctive so as to

support the inference that the same person committed both acts. [Citation.] ‘The pattern


                                                8
and characteristics of the crimes must be so unusual and distinctive as to be like a

signature.’ [Citation.]” (Ibid.) A lesser degree of similarity is required to show intent

than identity or common plan, because the recurrence of similar conduct tends to negate

the possibility that it occurred by accident or inadvertence. (Id. at p. 402.)

       A determination that uncharged crimes evidence is relevant under Evidence Code

section 1101, subdivision (b), is not the end of the inquiry, however. “Evidence of

uncharged offenses ‘is so prejudicial that its admission requires extremely careful

analysis. [Citations.]’ [Citations.] ‘Since “substantial prejudicial effect [is] inherent in

[such] evidence,” uncharged offenses are admissible only if they have substantial

probative value.’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 404, italics omitted.) Thus,

to be admissible, uncharged crimes evidence that is relevant to prove identity, intent or

common design or plan “‘must not contravene other policies limiting admission, such as

those contained in Evidence Code section 352.’” (Ibid.)

       In Ewoldt, the Supreme Court explained, “Evidence of a common design or plan

. . . is not used to prove the defendant’s intent or identity but rather to prove that the

defendant engaged in the conduct alleged to constitute the charged offense.” (Ewoldt,

supra, 7 Cal.4th at p. 394.) The Ewoldt court observed that the “distinction, between the

use of evidence of uncharged acts to establish the existence of a common design or plan

as opposed to the use of such evidence to prove intent or identity, is subtle but

significant.” (Id. at p. 394, fn. 2.)

       “Evidence of a common design or plan is admissible to establish that the

defendant committed the act alleged. Unlike evidence used to prove intent, where the act


                                               9
is conceded or assumed, ‘[i]n proving design, the act is still undetermined. . . .’

[Citations.] For example, in a prosecution for shoplifting in which it was conceded or

assumed that the defendant was present at the scene of the alleged theft, evidence that the

defendant had committed uncharged acts of shoplifting in a markedly similar manner to

the charged offense might be admitted to demonstrate that he or she took the merchandise

in the manner alleged by the prosecution.

       “Evidence of identity is admissible where it is conceded or assumed that the

charged offense was committed by someone, in order to prove that the defendant was the

perpetrator. For example, in a prosecution for shoplifting in which it was conceded or

assumed that a theft was committed by an unidentified person, evidence that the

defendant had committed uncharged acts of shoplifting in the same unusual and

distinctive manner as the charged offense might be admitted to establish that the

defendant was the perpetrator of the charged offense. [Citation.]” (Ewoldt, supra, 7

Cal.4th at p. 394, fn. 2.)

       The Ewoldt court further clarified that common scheme or plan evidence is

generally inadmissible in cases involving crimes such as robbery, where the primary

issue is whether the defendant was present at a particular location: “[I]n most

prosecutions for crimes such as burglary and robbery, it is beyond dispute that the

charged offense was committed by someone; the primary issue to be determined is

whether the defendant was the perpetrator of that crime. Thus, in such circumstances,

evidence that the defendant committed uncharged offenses that were sufficiently similar

to the charged offense to demonstrate a common design or plan (but not sufficiently


                                             10
distinctive to establish identity) ordinarily would be inadmissible. Although such

evidence is relevant to demonstrate that, assuming the defendant was present at the scene

of the crime, the defendant engaged in the conduct alleged to constitute the charged

offense, if it is beyond dispute that the alleged crime occurred, such evidence would be

merely cumulative and the prejudicial effect of the evidence of uncharged acts would

outweigh its probative value.” (Ewoldt, supra, 7 Cal.4th at p. 406.)

                3.   Analysis

       Defendant argues the trial court erred in admitting evidence of the uncharged

robbery for the purposes of proving intent or common plan or scheme. We apply the

abuse of discretion standard of review to this claim. (People v. Lenart, supra, 32 Cal.4th

at p. 1123.)

       In this case, defendant’s presence at the December 2008 robbery at the Temecula

jewelry store was far from assumed. On the contrary, defendant’s identity as one of the

perpetrators of the charged offenses was a central issue in the case. The uncharged

offense evidence was offered to attempt to prove that defendant was present at the scene

and that he participated in the charged robbery. We recognize the trial court erroneously

concluded evidence of the prior offense was admissible to prove common scheme or plan

since it was undisputed that the crime occurred. The evidence was also not admissible

under Evidence Code section 1101 to show intent since the intent of the perpetrator was

not at issue. However, the evidence was admissible to show the identity of the

perpetrators.




                                            11
        Even though the trial court’s reasons for admitting the evidence were erroneous,

the ruling will not be disturbed on appeal since the evidence was admissible on other

grounds. “‘“[A] ruling or decision, itself correct in law, will not be disturbed on appeal

merely because given for a wrong reason. If right upon any theory of the law applicable

to the case, it must be sustained regardless of the considerations which may have moved

the trial court to its conclusion.” [Citation.]’” (People v. Zapien (1993) 4 Cal.4th 929,

976.)

        The uncharged offense was sufficiently similar to the charged offense to establish

identity of the perpetrator. “‘Other-crimes evidence is admissible to prove the

defendant’s identity as the perpetrator of another alleged offense on the basis of similarity

“when the marks common to the charged and uncharged offenses, considered singly or in

combination, logically operate to set the charged and uncharged offenses apart from other

crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of

the uncharged offenses was the perpetrator of the charged offenses.” [Citation.]

[Citation.] The inference of identity, moreover, need not depend on one or more unique

or nearly unique common features; features of substantial but lesser distinctiveness may

yield a distinctive combination when considered together. [Citation.]” (People v. Miller

(1990) 50 Cal.3d 954, 987.)

        While many of the shared characteristics individually are generic in nature, the

court could reasonably find that the totality of the similar characteristics or common

marks was sufficient to admit evidence of the uncharged Orange County robbery under

Evidence Code section 1101, subdivision (b). Those similarities included: The robbers


                                             12
worked in pairs—one acting as a lookout while the other stole the jewels; they robbed

jewelry stores; they took only high-end jewels; they used obscured cars—one was a

rental and the other had paper license plates; they parked their getaway car in a manner

and location to allow a quick escape; they used a weapon; they wore hats, dark

sunglasses, and hooded sweatshirts; they used a large duffel bag; the robberies occurred

during business hours; and the robbers entered and exited the premises through the front

door.

        Although defendant contends these similarities are common of the crime, the

similarities, viewed in the aggregate, are significant because of their number. (People v.

Miller, supra, 50 Cal.3d at p. 988.) Taken together, the common marks logically operate

to set defendant’s robberies apart from other crimes of the same general variety and, in so

doing, tend to strongly suggest that defendant was a perpetrator of both robberies. (Id. at

p. 989.)

        Defendant argues the dissimilarities were “numerous and distinctive.” Such

dissimilarities included: the robberies occurred in different counties; the vehicle used in

the Orange County robbery was a distinctive blue while the car used in the Temecula

robbery was a common gray Honda with paper dealership plates; the style of the

robberies was different—a stick-up versus a smash and grab; the weapons used was

different—a sledgehammer versus a gun; defendant acted as a lookout in the Orange

County robbery; and the victims were threatened in the Orange County robbery.




                                             13
       While the prior and charged offenses were dissimilar in some ways, a reasonable

court nevertheless could conclude the totality of similar common marks was sufficient to

admit the evidence under Evidence Code section 1101, subdivision (b).

       Defendant also claims that even if the prior offense is admissible under section

Evidence Code section 1101, the court should have excluded it as being unduly

prejudicial under Evidence Code section 352. “[O]ther-crimes evidence must be

excluded if its probative value is outweighed by its prejudicial effect (Evid. Code, § 352),

or if the evidence is ‘merely cumulative with respect to other evidence which the People

may use to prove the same issue. . . .’” (People v. Miller, supra, 50 Cal.3d at p. 987,

quoting People v. Thompson (1980) 27 Cal.3d 303, 318.)

       Here, the trial court’s finding that the probative value of evidence of the prior

offense outweighed any prejudicial effects of the evidence was within the bounds of

reason. The uncharged and charged robberies shared numerous common characteristics,

which resulted in evidence of the prior crime being highly probative in establishing that

defendant perpetrated the charged offenses. The probative value was also enhanced by

the fact that investigation of the prior robbery was entirely separate and independent from

the charged offense and, thus, the investigation was not influenced by knowledge of the

charged offense. (Ewoldt, supra, 7 Cal.4th at p. 404.) In addition, testimony regarding

the prior robbery was not unduly detailed or lengthy. Also, the prior offense, which

occurred a few months before the charged offense, was not significantly more

inflammatory than the charged crime.




                                             14
       Even if there was error in admitting evidence of the uncharged incident of robbery

to prove identity, the error was not prejudicial. As a general rule, the erroneous

admission of evidence is prejudicial only if it is reasonably probable that absent its

admission defendant would have received a more favorable result. (People v. Watson

(1956) 46 Cal.2d 818, 836.)

       Defendant has failed to show a reasonable probability he would have received a

more favorable result absent the uncharged crimes evidence. (People v. Ochoa (2001) 26

Cal.4th 398, 442.) The jury here was presented with substantial evidence to establish

defendant’s identity as the perpetrator of the Temecula robbery. OCSD investigators

observed defendant casing several jewelry stores in the Southern California area with his

accomplice just weeks after the Temecula robbery. While casing the jewelry stores,

defendant drove a gray Honda Accord with paper Norm Reeves license plates—the

vehicle matching the description of the getaway car from the Temecula robbery. When

defendant was stopped in the gray Honda Accord vehicle with his accomplice on

December 23, investigators found numerous items linking defendant to the Temecula

robbery in the car. Officers found a sledgehammer, a dark duffel bag, jewelry trays from

the Temecula jewelry store, gloves, sunglasses, and a diamond ring. Finally, Mr. McKay

identified defendant as one of the two men he saw running from the Temecula

Promenade Mall and getting into the gray Honda Accord with paper Norm Reeves

license plates. Defendant’s guilt was established even absent the uncharged crimes

evidence; therefore, any error in admitting evidence of the Orange County robbery was

harmless. (See People v. Cavanaugh (1955) 44 Cal.2d 252, 268-269.)


                                             15
      B.     Sufficiency of the Evidence to Support the Weapon’s Use Enhancement

      Defendant contends the evidence was insufficient to support the personal use of a

deadly weapon allegation because he did not use or display the sledgehammer in a

menacing manner. Rather, he argues, the evidence supports only a finding that he used

the sledgehammer as a tool to open the jewelry case, not as a weapon to threaten the store

employees.

      Under section 12022, subdivision (b)(1), “Any person who personally uses a

deadly or dangerous weapon in the commission of a felony or attempted felony shall be

punished by an additional and consecutive term of imprisonment in the state prison for

one year, . . .” “A defendant personally uses a dangerous or deadly weapon under section

12022, subdivision (b) when he ‘displays such a weapon in an intentionally menacing

manner’ or intentionally strikes or hits a human being with it.” (People v. Winslow

(1995) 40 Cal.App.4th 680, 686; see also People v. Wims (1995) 10 Cal.4th 293, 302,

disapproved on other grounds in People v. Sengpadychith (2001) 26 Cal.4th 316, 325-

326.) In contrast, armed with a weapon has been defined as to knowingly carry or have a

weapon available for offensive or defensive use. (See § 1203.06, subd. (b)(3); People v.

Bland (1995) 10 Cal.4th 991, 997.)

      In comparing the terms “use” and “armed,” the term “use” has been given a broad

definition. Indeed, our Supreme Court has explained that the “obvious legislative intent

to deter the use of firearms [or weapons] in the commission of the specified felonies

requires that ‘uses’ be broadly construed.” (People v. Chambers (1972) 7 Cal.3d 666,

672; see also People v. Fierro (1991) 1 Cal.4th 173, 225, disapproved on another ground


                                            16
as stated in People v. Letner & Tobin (2010) 50 Cal.4th 99, 205-207.)5 Thus, in defining

the term “use” the court has noted that “[a]lthough the use of a firearm connotes

something more than a bare potential for use, there need not be conduct which actually

produces harm but only conduct which produces a fear of harm or force by means or

display of a firearm in aiding the commission of one of the specified felonies.”

(Chambers, at p. 672; see also People v. Wims, supra, 10 Cal.4th at p. 302 [“In order to

find ‘true’ a section 12022[, subdivision](b) allegation, a fact finder must conclude that,

during the crime or attempted crime, the defendant himself or herself intentionally

displayed in a menacing manner or struck someone with an instrument capable of

inflicting great bodily injury or death”].)

       “‘Use’ means, among other things, ‘to carry out a purpose or action by means of,’

to ‘make instrumental to an end or process,’ and to ‘apply to advantage.’” (People v.

Chambers, supra, 7 Cal.3d at p. 672.) Therefore, if a defendant “deliberately shows” a

weapon “or otherwise makes its presence known, and there is no evidence to suggest any

purpose other than intimidating the victim (or others) so as to successfully complete the

underlying offense, the jury is entitled to find a facilitative use” supporting the

enhancement, “rather than an incidental or inadvertent exposure” that would not. (People

v. Granado (1996) 49 Cal.App.4th 317, 325 [the “failure to actually point the [weapon],

       5 The courts regularly refer to cases construing the “use” of a firearm sentencing
enhancement when interpreting the substantially similar enhancement for “use” of a
deadly or dangerous weapon. (See, e.g., People v. James (1989) 208 Cal.App.3d 1155,
1163 [“The weapon use provision of former section 12022, subdivision (b) is
substantially similar to the firearm use provision of section 12022.5. Therefore, we rely
on cases which construe the term ‘use’ in section 12022.5,” fn. omitted].)


                                              17
or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption”

from the statutory weapons use enhancement].) It is not necessary that the display cause

fear in the victim; the question is whether the defendant intended to facilitate the crime

through his conduct. (Id. at p. 328.)

       Whether a defendant “used” a weapon in committing a crime is a question “for the

trier of fact to decide.” (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) We review

such findings only to determine if they are supported by substantial evidence and, thus,

“review the whole record in the light most favorable to the judgment below to determine

whether it discloses substantial evidence—that is, evidence that is reasonable, credible

and of solid value—from which a reasonable trier of fact could” make the challenged

finding “beyond a reasonable doubt.” (People v. Snow (2003) 30 Cal.4th 43, 66; accord,

People v. Johnson (1980) 26 Cal.3d 557, 578.) We must presume in support of the

judgment the existence of every fact the trier could reasonably deduce from the evidence.

(People v. Rayford (1994) 9 Cal.4th 1, 23.)

       There is no dispute here that a sledgehammer can constitute a deadly weapon.

(See People v. Seaton (2001) 26 Cal.4th 598; People v. Simons (1996) 42 Cal.App.4th

1100, 1106-1107.) The key inquiry for the weapon use enhancement is whether

defendant used the sledgehammer in some fashion to aid the commission of the robberies.

(See People v. Fierro, supra, 1 Cal.4th at p. 226; People v. Granado, supra, 49

Cal.App.4th at pp. 325, 330; People v. Masbruch, supra, 13 Cal.4th at p. 1012.) In the

instant case, substantial evidence supports the jury’s finding that defendant used a

weapon in committing the robberies. When defendant entered the Temecula jewelry


                                              18
store, he took out a sledgehammer and began pounding the tempered glass with it

multiple times until the glass caved in. While defendant hammered the glass with the

sledgehammer, his accomplice stood next to the two store employees who stood a few

feet away and witnessed the incident, warning them not to move. One of the employees

testified that she saw defendant take out a sledgehammer from his duffel bag and then

saw him pounding on the tempered glass. Another employee testified that she heard

defendant pounding at the jewelry case. Both employees stated that they feared for their

safety. There was no evidence to suggest that defendant dropped the sledgehammer or

abandoned it after he broke the glass on the jewelry case; presumably defendant

continued to hold the sledgehammer as he fled the scene.6 The jury could reasonably

infer that defendant’s actions of using the sledgehammer were a display of menacing

power to facilitate the robberies. (See People v. Masbruch, supra, 13 Cal.4th at

pp. 1006-1011 [jury could reasonably conclude that control and fear created by initial

weapon display during theft continued through entire lengthy encounter even though

defendant did not display the weapon during ensuing rape.)




      6  We note, for purposes of use enhancement, robbery and similar crimes
“continue beyond the time of the physical conduct constituting the offense until the
perpetrator has reached a place of temporary safety. Accordingly, one who employs a
firearm [or weapon] at any time on the continuum between the initial step of the offense
and arrival at a place of temporary safety is subject to the enhancement.” (People v.
Taylor (1995) 32 Cal.App.4th 578, 582.) Therefore, despite the fact that defendant and
his accomplice had fled, the robbery continued until defendant fled and reached a place
of temporary safety, and any weapon use within that period of time is subject to the
enhancement. Indeed, defendant does not argue otherwise.


                                           19
       Defendant relies on People v. Hays (1983) 147 Cal.App.3d 534 to support his

proposition that he simply used the sledgehammer as a tool to open the jewelry case, and

not in an attempt to intimidate or frighten the victims. We find Hays distinguishable.

       In People v. Hays, supra, 147 Cal.App.3d 534, the defendant, with a sawed-off

rifle strapped to his body, crashed through the ceiling of a drugstore he intended to rob.

(Id. at p. 539.) The gun was in full view of two store employees while the defendant

committed the underlying crime. (Ibid.) However, there was no evidence the defendant

ever handled the rifle, let alone “display[ed] it in a menacing manner.” (Id. at p. 544.)

The Hays court reviewed several opinions regarding the use of weapons and observed,

“of the 14 cases finding use enhancement proper, 12 of them show the defendant aimed,

cocked, or fired the weapon [in the presence of the victim]. The 13th . . . found a use

enhancement where the gun was in the hands of the defendant while he verbally

threatened the robbery victims. The 14th . . . did not involve touching the weapon but

exposing it in a menacing fashion accompanied by words threatening a more violent use.”

(Id. at p. 548.) The appellate court struck the use enhancement because, unlike the

defendants in the surveyed cases, the defendant in Hays only “passively displayed” the

rifle, an act more akin to armed cases than use cases. (Id. at pp. 548-549.)

       This principle was reiterated in Alvarado v. Superior Court (2007) 146

Cal.App.4th 993. In Alvarado, the defendant walked into a convenience store,

commanded the clerk to call police, and stated he was on a suicide mission. After the

clerk called police, he noticed a shotgun resting on a candy rack about one foot away

from the defendant. (Id. at pp. 997-998.) The gun remained in that position until it was


                                             20
retrieved by police after the defendant’s arrest. As in Hays, there was no evidence of the

defendant brandishing or displaying the shotgun in a menacing manner, nor did any

victim or third party witness the defendant hold or pick up the shotgun or even draw

attention to its presence. Relying on Hays, the court held that the record showed no gun-

related conduct beyond passive exposure of the gun, circumstances under which a

personal use of a firearm enhancement cannot stand. (Id. at p. 1005.)

       Here, however, it was undisputed that defendant held the sledgehammer in his

hand and used it to pound on the glass of the jewelry case while his accomplice stood in

front of the two store employees, instructing them not to move and to place their hands in

the air. “The holding in Hays reflects a principle under which a finding of weapon use is

precluded if the defendant’s conduct with respect to the weapon appears to be purely

incidental to the crime. In Hays the evidence was insufficient because, even though the

gun was exposed to the victim’s view, the exposure was not an act in furtherance of the

crime, but a mere incident of possession.” (People v. Granado, supra, 49 Cal.App.4th at

p. 324.)

       As the court explained in Granado, the “litmus test” for determining whether a

defendant “used” a weapon (or was merely “armed” with a weapon) “is functional: did

the defendant take some action with the [weapon] in furtherance of the commission of the

crime? If so the [weapon] was ‘used,’ . . . If, on the other hand, the defendant engaged in

no weapons-related conduct, or such conduct was incidental and unrelated to the offense,

no ‘use’ occurred.” (People v. Granado, supra, 49 Cal.App.4th at p. 325, fn. 7.)




                                            21
       We agree with Granado and hold that the dividing line between “use” and

“armed” is determined by whether the defendant’s weapon-related conduct constitutes an

act in furtherance of a crime or merely a passive and inadvertent exposure of the weapon.

It is irrelevant whether the weapon-related conduct was directed at or witnessed by

someone. This interpretation is in accord with our Supreme Court’s mandate that the

term “use” be broadly construed. (People v. Chambers, supra, 7 Cal.3d at p. 672.)

Further, using this analysis, it is clear that the finding of simple arming in Hays and

Alvarado resulted from the fact the defendants there simply did not engage in any

weapon-related conduct. (People v. Hays, supra, 147 Cal.App.3d at pp. 544, 548-549;

Alvarado v. Superior Court, supra, 146 Cal.App.4th at p. 1005.)

       The facts of the present case are unlike Hays and Alvarado, where there was only

a passive display of the weapon and no weapon-related conduct to speak of. All that is

needed to uphold a use enhancement is substantial evidence that the defendant engaged in

any weapon-related conduct with the intent to facilitate the commission of the underlying

crime. Here, defendant pulled out a sledgehammer from his duffle bag, held it with his

hands, and began pounding on the tempered glass with it while the two victims stood

several feet away in fear for their safety. There is no evidence that defendant dropped the

sledgehammer or abandoned the weapon once he broke the glass with it. Presumably,

defendant continued to hold the sledgehammer until he reached a point of safety. Thus,

defendant engaged in a weapon-related conduct while possessing the intent to facilitate

commission of the underlying robberies; nothing more is needed for the weapon-use




                                             22
enhancement to stand. From defendant’s actions, the jury could reasonably infer that

defendant in fact displayed the sledgehammer in a menacing manner.

       The use enhancement statute was intended to deter a defendant from “bringing a

gun [or weapon] ‘into play’” during the commission of a felony because this increases the

likelihood of violent injury, not only through “an intentional act by the victim or a third

party, but through an impulsive or inadvertent act by the defendant.” (People v.

Granado, supra, 49 Cal.App.4th at p. 327, italics added.) The threat of an inadvertent or

impulsive act by the defendant remains even where a weapon is also used as a tool to

commit the offense. Defendant’s actions here produced a fear of harm and aided in the

commission of the robberies. “In light of the decision as a whole, . . . [i]t is more

reasonably understood to mean that the conduct must be such as ‘produces a fear of harm

or force’ on the part of a hypothetical, reasonable observer—such as a juror looking back

at the event through the lens of the evidence at trial.” (Ibid.) Consequently, we cannot

disturb the jury’s finding that, in committing the robberies, defendant used a dangerous or

deadly weapon.




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                                       III

                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                 RAMIREZ
                                                           P. J.


We concur:


RICHLI
                         J.


KING
                         J.




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