Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA341025 Michael E. Pastor, Judge.
Elisa A. Brandes, 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, Senior Assistant Attorney General, Yun K. Lee and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Jonathan Esteven Castro Barahona was convicted by jury of the second degree robbery of Spencer Blanco in violation of Penal Code section 211, with the further finding that defendant personally used a handgun in the commission of the offense within the meaning of section 12022.53, subdivision (b). Defendant was sentenced to 15 years in state prison and ordered to pay various fines and penalties, including restitution to the victim in the amount of $870.
All statutory references are to the Penal Code, unless otherwise indicated.
In his timely appeal from the judgment, defendant argues the evidence was insufficient to support the finding that he used a firearm in the commission of the robbery, and the trial court abused its discretion by setting the amount of restitution without a hearing. We affirm.
FACTS
Blanco was waiting for a ride on May 12, 2008, when he saw a gold car stop nearby. Defendant and another man exited the car, armed with pistols they tucked into their waistbands. Defendant had an automatic handgun. Although Blanco could not tell if the weapon was real or a fake, he assumed it was real. Defendant said “18 rules” and told Blanco if he tried to do anything, they would attack or kill him. Blanco was robbed of his cell phone, wallet, backpack, and gold bracelet. He did not resist out of fear of being shot. The two men reentered the car and left the area. Blanco identified defendant’s photograph from a photographic lineup and also identified defendant at the preliminary hearing and at trial.
On May 16, 2008, Diana Lopez was walking when a man exited a light brown car and walked towards her with his hand under his shirt. The man said “M.S.” The man jerked on a chain around Lopez’s neck and tugged at her purse, taking it from her. She wrote down the license number of the car and gave it to the police She was 80 percent sure defendant was the man who robbed her.
Defendant was charged with the Lopez robbery but found not guilty by the jury. The facts relating to that robbery are included to the extent they are relevant to the robbery of Blanco.
Karina Melara loaned her car to Eleazer Castro, her boyfriend’s brother, on May 18, 2008. Defendant is her boyfriend’s nephew.
On May 20, 2008, Detective Sergio Martinez received the license plate number reported by Lopez. He learned the car with that license had been sold to Melara. Melara consented to a search of her car. Detective Heather Wilbur recovered Blanco’s wallet from the trunk of Melara’s car. Melara did not know Blanco. Detective Martinez returned the wallet and other documents to Blanco.
Defendant was interviewed on May 20, 2008. He said that he had moved Melara’s car on the evening of May 16. The car had been driven by his uncle, Castro, who had double-parked the vehicle.
The sole defense witness was Dr. Mitchell Eisen, who testified as an expert on factors relating to the reliability of eyewitness identification.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE FIREARM USE ALLEGATION
Defendant argues there is insufficient evidence to support the finding that he personally used a firearm in the commission of the robbery of Blanco. Specifically, defendant contends Blanco’s testimony was constitutionally insufficient to establish that the weapon met the statutory definition of a firearm.
Standard of Review
In assessing a claim of insufficiency of evidence, the appellate court’s task is to review “the whole record in the light most favorable to the judgment... to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the appellant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) The federal standard of review is to the same effect: under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) Where substantial evidence supports the trial court’s finding, and other circumstances support a contrary finding, the trial court’s finding will not be reversed. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Pertinent Statutes
Defendant’s argument involves the interplay of two statutes. First, section 12022.53, subdivision (b), creates a ten-year state prison enhancement for a defendant convicted of robbery who personally uses a firearm in the commission of the offense. Second, for the definition of a firearm, we look to section 12001, subdivision (b), which defines a firearm as “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” Accordingly, toy guns, BB guns, and pellet guns do not qualify as firearms for purposes of section 12022.53, subdivision (b). (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).)
The Opinion in Monjaras
Defendant recognizes that his argument is inconsistent with the holding in Monjaras, supra, 164 Cal.App.4th 1432, where during a robbery the defendant “pulled up his shirt and displayed the handle of a black pistol tucked in his waistband.” (Id. at p. 1434.) As in the instant case, the jury in Monjaras found the defendant had used a firearm in the commission of the robbery within the meaning of section 12022.53, subdivision (b). (Monjaras, supra, at p. 1434.) On appeal, the defendant argued there was no evidence to support a finding on the gun use allegation because the victim could not say whether the weapon was a gun or a toy. (Id. at p. 1435.) The Court of Appeal emphatically disagreed with the contention.
“The fact that an object used by a robber was a ‘firearm’ can be established by direct or circumstantial evidence. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11-12; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541; People v. Dominguez (1995) 38 Cal.App.4th 410, 421.)” (Monjaras, supra, 164 Cal.App.4th at pp. 1435-1436.) Circumstantial evidence alone is often used to prove use of a firearm, “because when faced with what appears to be a gun, displayed with an explicit or implicit threat to use it, few victims have the composure and opportunity to closely examine the object; and in any event, victims often lack expertise to tell whether it is a real firearm or an imitation. And since the use of what appears to be a gun is such an effective way to persuade a person to part with personal property without the robber being caught in the act or soon thereafter, the object itself is usually not recovered by investigating officers.” (Id. at p. 1436.)
The victim in Monjaras “had seen guns before but had never handled one, testified she immediately saw that the pistol looked like a gun, and it made her scared. She ‘assumed’ the pistol was ‘real’ and handed over her pocketbook. When asked by defendant’s trial attorney what the pistol was made of, the victim said: ‘Probably metal because—I don’t know. Wasn’t wood, wasn’t plastic. I don’t know if it was plastic or metal.... He don’t show it to me. He just do “this” to me [pulled up his shirt and displayed the pistol].’ The victim then conceded that she could not say for certain whether it was ‘a toy or real or not.’” (Monjaras, supra, 164 Cal.App.4th at p. 1436.)
“The jury was not required to give defendant the benefit of the victim’s inability to say conclusively the pistol was a real firearm. This is so because ‘defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that he used a [firearm].’ (People v. Rodriguez, supra, 20 Cal.4th at p. 13.) Indeed, even though for purposes of section 12022.53, subdivision (b), a firearm need not be loaded or even operable, ‘words and actions, in both verbally threatening and in displaying and aiming [a] gun at others, [can] fully support[ ] the jury’s determination the gun was sufficiently operable [and loaded].’ (People v. Lochtefeld, supra, 77 Cal.App.4th at p. 541.) Accordingly, jurors ‘may draw an inference from the circumstances surrounding the robbery that the gun was not a toy.’ (People v. Aranda (1965) 63 Cal.2d 518, 533, (hereafter Aranda).)” (Monjaras, supra, 164 Cal.App.4th at pp. 1436-1437.)
Aranda, supra, was superceded by statute on another ground. (See People v. Fletcher (1996) 13 Cal.4th 451, 465.)
“As the old saying goes, ‘if it looks like a duck, and quacks like a duck, it’s a duck.’ The pistol tucked into defendant’s waistband looked like a firearm, and it in effect communicated that it was a firearm when defendant menacingly displayed it and ordered the victim to give him her purse. While it is conceivable that the pistol was a toy, the jury was entitled to take defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand. (See Aranda, supra, 63 Cal.2d at pp. 532[ ]533.)” (Monjaras, supra, 164 Cal.App.4th at p. 1437.)
“Simply stated, when as here a defendant commits a robbery by displaying an object that looks like a gun, the object’s appearance and the defendant’s conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm within the meaning of section 12022.53, subdivision (b). In other words, the victim’s inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm. (See Aranda, supra, 63 Cal.2d at pp. 532-533 [‘Testimony by witnesses who state that they saw what looked like a gun, even if they cannot identify the type or caliber, will suffice’ to prove ‘the gun was not a toy’].)” (Monjaras, supra, 164 Cal.App.4th at pp. 1437-1438.)
Application of Monjaras to this Appeal
The facts regarding defendant’s robbery of Blanco cannot meaningfully be distinguished from those in Monjaras. Blanco described defendant’s gun as a black automatic weapon. He could not tell if the weapon was real or fake, but as far as he knew, it was real and he was in fear. Defendant threatened Blanco by referring to a gang and indicating he would be left for dead if he tried anything. Under Monjaras, the jury could reasonably infer from the evidence that defendant used a real firearm in the commission of the robbery.
Defendant argues that Monjaras “suffers from both constitutional and logical flaws.” First, he contends Monjaras impermissibly shifts the burden of proof to the defense to show that the gun was not real, effectively creating an unconstitutional presumption. Second, defendant argues Monjaras is flawed because there are numerous reasons a person would use a fake gun in a robbery—such as to avoid the danger of actually firing the weapon, toy guns are easier and cheaper to obtain and use, and fake guns can be just as intimidating as a real weapon.
We have quoted Monjaras at length above and fail to discern any of the flaws argued by defendant. There is nothing in the analysis of the Monjaras court that suggests the burden of proof is shifted to the defendant to prove a weapon used does not fit within the statutory definition of a firearm. To the contrary, the decision merely relies upon the substantial evidence rule, giving proper deference to the reasonable inferences a jury might draw from a circumstantial set of facts. Monjaras does not in any sense indicate a weapon is presumed to be a firearm as defined by statute.
Accepting defendant’s argument that there may be reasons why a robber would choose a toy gun as opposed to a real firearm, it does not follow that Monjaras was incorrectly decided. A jury is entitled to consider the reasons why a criminal would, or would not, use a real firearm as opposed to a toy in determining the truth of a firearm use allegation. The fact that arguments can be made on either side of the issue hardly is a basis for holding that the evidence in this case is constitutionally insufficient.
We agree with the reasoning in Monjaras and reject defendant’s argument that it was incorrectly decided. The firearm use finding against defendant is supported by substantial evidence.
II
THE RESTITUTION HEARING
Defendant’s second and final argument is that the trial court abused its discretion by setting the amount of restitution without a hearing. Our review of the record indicates a restitution hearing was held and defendant neither presented evidence to contest the amount of the victim’s loss nor did he object to the amount of the restitution order.
At the probation and sentence hearing, the prosecutor advised the trial court there would be a stipulation to the restitution to Blanco in the amount of $820. Defense counsel then told the court she thought defendant was agreeable to the stipulation but that he had changed his mind and wanted to set a restitution hearing. The court stated it did not need to set a hearing and asked the prosecutor for the basis of the $820. The court further stated the probation report indicated a loss of $920, and Blanco had testified to being robbed of a wallet, cell phone, backpack, and cash.
The probation officer was unable to contact Blanco, and the source of this information is not indicated in the probation report.
The prosecutor said he spoke to Blanco on September 23 on the telephone. Blanco told him he lost $550 in cash, a cell phone costing $170, and a gold cross worth $100, for a total of $820. Blanco did not mention the backpack.
The trial court decided to give Blanco $50 for the backpack, in addition to the other losses, for a total restitution order of $870 “which is very reasonable....” The defense did not object to any of the components of the restitution order.
Standard of Review
“As both parties agree, we review the trial court’s restitution order for abuse of discretion. [Citations.] The abuse of discretion standard is ‘deferential,’ but it ‘is not empty.’ (People v. Williams (1998) 17 Cal.4th 148, 162.) ‘[I]t asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’ (Ibid.) Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim’s economic loss. To facilitate appellate review of the trial court’s restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.” (People v. Giordano (2007) 42 Cal.4th 644, 663-664.)
“‘When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.’ (People v. Dalvito (1997) 56 Cal.App.4th 557, 562; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1390.)” (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)
Defendant was Afforded a Restitution Hearing
Pursuant to section 1202.4, subdivision (f), “the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” A “defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (Id., subd. (f)(1).)
The record demonstrates that defendant did have a restitution hearing, as contemplated by section 1202.4, subdivision (f). Both the probation officer and the prosecutor reported the amount of the loss claimed by Blanco. The trial court reasonably relied upon these two officers of the court, analyzed the evidence, and explained how it calculated the amount of restitution. There was both a rational and factual basis for the restitution order.
In People v. Gemelli (2008) 161 Cal.App.4th 1539, the trial court set the amount of restitution based upon what the victim had reported to the probation officer. The Court of Appeal held that nothing more was required to support the amount of a restitution order. “Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. (People v. Fulton (2003) 109 Cal.App.4th 876, 886.) The defendant has the burden of rebutting the victim’s statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. (Ibid.)” (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.)
Defendant made no attempt to show that Blanco’s loss differed from the amount he claimed. Moreover, defendant does not demonstrate in any way that it is reasonably probable that a more favorable result would occur if he were given a new restitution hearing. In the absence of any showing of an error in setting the amount of restitution, or any likelihood that a new hearing would result in a more favorable restitution order, the restitution order must be affirmed. (Cal. Const., art. VI, § 13.)
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.