P. v. Pinks 3/27/08 CA2/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B198046

Case Date: 06/25/2008

Preview:Filed 3/27/08 P. v. Pinks CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. LENNOX WINSTON PINKS, Defendant and Appellant.

B198046 (Los Angeles County Super. Ct. No. KA 076726)

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles E. Horan, Judge. Reversed in part with directions and affirmed in part. ________ Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent. _________

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Lennox Winston Pinks was convicted of two counts of robbery and one count of possession of marijuana for sale. He appeals, arguing that the trial court committed two instructional errors and that one of his robbery convictions is not supported by substantial evidence. We agree with his substantial evidence argument and therefore reverse one robbery conviction, but we otherwise affirm. BACKGROUND The second amended information charged Pinks with two counts of second degree robbery in violation of Penal Code section 2111 (counts 1 and 2) and one count of possession of marijuana for sale in violation of Health and Safety Code section 11359. The information further alleged that, in committing the robberies alleged in counts 1 and 2, Pinks personally used a firearm within the meaning of section 12022.53, subdivision (b). Pinks pleaded not guilty and denied the special allegations. A jury convicted him on all counts and found the firearm allegations true. The trial court sentenced him to 13 years and 8 months in state prison, calculated as follows: the midterm of 3 years, plus 10 years for the firearm enhancement, on each of counts 1 and 2, the sentences to run concurrently; plus the midterm of 8 months on count 3, to run consecutively. The evidence showed that in the evening of October 5, 2006, Pinks entered a convenience store carrying a gun. Pinks pointed the gun first at the box boy and then at the cashier, and he demanded money from the cashier. The cashier initially refused Pinks' demand but ultimately complied and opened the cash register drawer, from which Pinks took $120 to $130. The box boy phoned the owner of the store and informed him of the robbery, and the owner called the police. Pinks was apprehended less than one week later. In custody, he initially denied involvement in the robbery but later admitted it after being shown footage from a surveillance camera, and he said he had used a pellet gun or BB gun in the robbery. At

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All subsequent statutory references are to the Penal Code unless otherwise indicated.

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trial, the cashier testified that he had observed the gun closely, and it appeared to be a "real gun." DISCUSSION I. No Duty to Instruct on Lesser Included Enhancements The trial court instructed the jury on the sentencing enhancement for personal use of a firearm. Pinks argues that the trial court had a duty to instruct the jury sua sponte concerning the lesser included enhancement for personal use of a deadly or dangerous weapon because the record contained substantial evidence that Pinks used a pellet gun or BB gun, which is a deadly or dangerous weapon but not a firearm. We disagree because, as a matter of law, the trial court has no duty to instruct the jury sua sponte on lesser included enhancements. In People v. Majors (1998) 18 Cal.4th 385, the California Supreme Court held that "a trial court's sua sponte obligation to instruct on lesser included offenses does not encompass an obligation to instruct on `lesser included enhancements.'" (Id. at p. 411.) Pinks argues that we are not bound by that case, however, because it was implicitly overruled by the United States Supreme Court's statement in Apprendi v. New Jersey (2000) 530 U.S. 466, that a "`sentence enhancement' . . . is the functional equivalent of an element of a greater offense." (Id. at p. 494, fn. 19.) The argument fails because the statement in Apprendi means only that, for purposes of the due process requirement that every fact which increases the maximum penalty to which the defendant is exposed must by found by a jury beyond a reasonable doubt, a sentence enhancement is the functional equivalent of an element of a greater offense. Apprendi had nothing to do with a court's sua sponte obligation to instruct on lesser included offenses or lesser included enhancements. Apprendi therefore did not overrule the California Supreme Court's holding that trial courts have no sua sponte obligation to instruct on lesser included enhancements. The two other cases on which Pinks relies are likewise inapposite. People v. Breverman, supra, 19 Cal.4th at pages 148-149, dealt only with the sua sponte obligation

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to instruct on lesser included offenses, not lesser included enhancements. We consequently cannot agree with Pinks' suggestion that Breverman implicitly overruled People v. Majors, supra, 18 Cal.4th 385, which was decided only a few months earlier. Pinks' reliance on People v. Sengpadychith (2001) 26 Cal.4th 316, too is misplaced, because that case did not deal with the sua sponte obligation to instruct on lesser included offenses or lesser included enhancements. For all of these reasons, we reject Pinks' argument that the trial court had a duty to instruct the jury sua sponte concerning the lesser included enhancement for personal use of a deadly or dangerous weapon. II. Waiver of Other Claim of Instructional Error Pinks argues that the trial court erred by failing to instruct the jury on the definition of a BB gun. We conclude that Pinks has forfeited this claim by failing to raise it in the trial court. "[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case." (People v. Carter (2003) 30 Cal.4th 1166, 1219.) At the same time, however, "[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024.) Pinks did not request a clarifying instruction concerning the definition of a BB gun, so he has waived the issue unless he can demonstrate that the instructions given were not "correct in law." (People v. Lang, supra, 49 Cal.3d at p. 1024.) He cannot. The trial court instructed the jury on the definition of a firearm. The instruction was correct and adequate as given, because it correctly informed the jury of the facts the jury needed to find in order to find that the weapon Pinks used was a firearm within the meaning of the enhancement. Pinks' failure to request additional clarifying instructions

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"bars appellate review of the issue" on direct appeal. (People v. Johnson (1993) 6 Cal.4th 1, 52.) III. No Evidence of Constructive Possession with Respect to the Box Boy Pinks argues that his conviction for robbery of the box boy must be reversed because (1) the box boy's status as an employee of the store is not, in itself, sufficient to prove that the box boy had constructive possession of the cash that Pinks took, and (2) the record contains no other evidence that is sufficient to support a finding of constructive possession. We agree. Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (

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