People v. Jackson

In a court trial appellant was found guilty of robbery and of using a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). He was sentenced to the state prison for a middle term of three years plus two years for the enhancement pursuant to section 12022.5.

(1) Appellant's sole contention is that the use of a firearm finding should be stricken because the firearm had a defect in the linkage between the trigger and the hammer and could not successfully be fired simply by pulling on the trigger. This contention is without merit.

There is no question that appellant "used" the gun in committing the robbery, by pointing it at the victim when he demanded money. ( People v. Chambers, 7 Cal.3d 666, 672 [ 102 Cal. Rptr. 776 , 498 P.2d 1024 ].) The gun was recovered a few minutes later where appellant was observed to drop it as he fled. [1] It was a Rohm .38 special revolver. A police firearms expert testified that it would not fire as the manufacturer intended, by simply loading and pulling the trigger, because there was some problem in the linkage between the trigger and the hammer. [2]

The trial court found that on the night of…

In a court trial appellant was found guilty of robbery and of using a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). He was sentenced to the state prison for a middle term of three years plus two years for the enhancement pursuant to section 12022.5.

*901 Appellant’s sole contention is that the use of a firearm finding should be stricken because the firearm had a defect in the linkage between the trigger and the hammer and could not successfully be fired simply by pulling on the trigger. This contention is without merit.

There is no question that appellant “used” the gun in committing the robbery, by pointing it at the victim when he demanded money. (People v. Chambers, 7 Cal.3d 666, 672 [ 102 Cal.Rptr. 776 , 498 P.2d 1024 ].) The gun was recovered a few minutes later where appellant was observed to drop it as he fled. 1 It was a Rohm .38 special revolver. A police firearms expert testified that it would not fire as the manufacturer intended, by simply loading and pulling the trigger, because there was some problem in the linkage between the trigger and the hammer.

The trial court found that on the night of the robbery…

I concur. The uncontradicted evidence is that the gun could be fired, albeit in “some esoteric manner,” as the trial court put it. We are not bound by the trial court’s conclusion that this made the gun inoperable. To be sure, the trial court’s expressed belief that on November 3, 1977, “Mr. Jackson could not have fired the weapon,” is puzzling. My only explanation in the light of the clear evidence is that the court felt that Jackson could not have fired the weapon because he did not know how to. That, of course, is immaterial.

Appellant’s petition for a hearing by the Supreme Court was denied July 5, 1979.