Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J36562
McGuiness, P.J.
When he left school on the afternoon of September 12, 2006, high school student Jonathan A. walked into a 7-11 store. He noticed appellant and another boy enter the store and walk around without purchasing anything. Appellant approached Jonathan when he left the store and began walking alongside him. Appellant demanded that Jonathan give him some gold teeth Jonathan was wearing. Jonathan refused. Appellant said he “was strapping,” which meant he was carrying a gun, but Jonathan told appellant he did not believe him. In response, appellant lifted his shirt and showed Jonathan the handle of a gun sticking out of the waistband of his pants. The handle was black and well worn and looked to Jonathan like part of a semiautomatic revolver. Appellant suggested they fight for the teeth, but Jonathan said, “ ‘I won’t fight with anybody that I know has a gun.’ ” When Jonathan refused again to give up the teeth, or else hand over his shoes and pants, appellant reminded him they went to school together and appellant knew Jonathan’s sister. Jonathan considered this mention of his family to be a threat, so he gave appellant the gold teeth and, at appellant’s direction, gave the $10 he had in his pocket to appellant’s companion. Appellant and his companion ran away, and Jonathan contacted the police.
On September 13, 2006, Jonathan accompanied an investigating officer to the principal’s office and, after looking through the office window, he identified appellant as the person who robbed him. The officer then entered the room and placed appellant under arrest. When he was arrested, appellant was carrying a loaded .380-caliber Colt Mustang handgun in his pants pocket. Also in the pants pocket was a set of gold teeth.
A Welfare and Institutions Code section 602 petition was filed September 15, 2006, alleging appellant had committed second degree robbery (Pen. Code, § 211) and conspiracy to commit second degree robbery (§ 182, subd. (a)(1)), possessed a firearm in a school zone (§ 626.9, subds. (b), (f)(1)), had a concealed firearm on his person (§ 12025, subd. (a)(2) [one count alleging the firearm was loaded, and one count alleging it was stolen]), carried a loaded, unregistered firearm (§ 12031, subds. (a)(1), (a)(2)(f)), carried a loaded, stolen firearm (§ 12031, subd. (a)(2)(B)), was a minor in possession of a firearm (§ 12101, subd. (a)(1)), was a minor in possession of live ammunition (§ 12101, subd. (b)(1)), and received stolen property (§ 496, subd. (a) [one count referring to the gold teeth, and one count referring to the firearm].) With respect to the robbery charge, the petition alleged the offense was a serious felony (§§ 667.5, subd. (c), 1192.7, subd. (c)) and appellant had personally used a firearm in committing the offense (§§ 12022.5, subd. (a), 12022.53, subd. (b)). Finally, the petition declared an intention to aggregate appellant’s term of confinement with the term imposed for a previously sustained Welfare and Institutions Code section 602 petition.
All statutory references are to the Penal Code unless otherwise stated.
On May 3, 2006, appellant admitted allegations in a Napa County petition of first degree residential burglary and obstructing a peace officer. After the case was transferred to Solano County for disposition, appellant was placed on probation with a maximum confinement term of six years, four months.
After a contested jurisdictional hearing on October 6, 2006, the juvenile court sustained all counts of the petition except the count alleging conspiracy to commit robbery. The court also found the serious felony and personal use of a firearm allegations to be true. At a contested dispositional hearing on November 30, 2006, the court granted appellant’s motion to dismiss three of the sustained counts on the ground that insufficient evidence was presented to show the firearm in appellant’s possession was stolen. The court continued appellant as a ward of the court on a grant of probation, committed him to Fouts Springs Youth Facility, and directed the probation department to calculate the maximum term of confinement. In addition, the court ruled that the time for counts 8 (minor in possession of a firearm) and 10 (possession of stolen property—gold teeth) would be stayed pursuant to section 654. By order of December 8, 2006, the maximum period of confinement was set at 234 months.
DISCUSSION
I. Substantial Evidence Supports the Firearm Use Enhancement
Appellant’s primary claim on appeal is that insufficient evidence supports the juvenile’s court’s finding that he personally used a firearm in committing the robbery. In reviewing the sufficiency of evidence to support a juvenile delinquency adjudication, “the critical inquiry is ‘whether, after reviewing 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.’ [Citation.]” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) “ ‘This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] . . . [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . ., it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]’ (People v. Redmond (1969) 71 Cal.2d 745, 755.)” (In re Ryan N., supra, 92 Cal.App.4th at p. 1372.)
Section 12022.53, subdivision (b) states that “any person who, in the commission of [an enumerated felony], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.” (See also § 12022.53, subd. (a)(4) [listing robbery as one of the felonies to which the enhancement may apply].) The Supreme Court has explained that the Legislature’s choice of the word “uses,” rather than the phrase “while armed,” indicates something more is required than commission of the offense while armed. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) However, “[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. ‘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.’ [Citation.] The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that ‘uses’ be broadly construed.” (People v. Chambers (1972) 7 Cal.3d 666, 672.)
Appellant did not point the gun he was carrying at Jonathan, but he did purposefully display the weapon in an effort to convince Jonathan to surrender his property. When Jonathan refused to hand over the gold teeth appellant wanted, appellant told the boy he was carrying a gun and proceeded to show him the gun. This menacing display of the weapon was a “use” of the weapon to induce fear and thereby help appellant accomplish the robbery. Although Jonathan claimed on the witness stand that he was not afraid of appellant, he also testified that he told appellant he knew better than to fight someone who had a gun, and he ultimately handed over the teeth and all the cash in his pocket. Appellant now argues Jonathan’s compliance was motivated more by the veiled threat against his sister than the display of the weapon; however, the court could reasonably conclude Jonathan feared for his sister’s safety precisely because, as a result of the display, he knew appellant was walking around with a concealed firearm.
In People v. Granado (1996) 49 Cal.App.4th 317, Division Two of this court concluded a defendant’s intentional display of a firearm during a robbery is sufficient conduct to support a personal use enhancement. Discussing the predecessor statute to section 12022.53, the court observed, “Nothing in the language of section 12022.5(a) discloses a legislative intent to limit its application to situations where the gun is pointed at the victim or the defendant issues explicit threats of harm.” (People v. Granado, supra, 49 Cal.App.4th at p. 322.) “Thus when a defendant deliberately shows a gun, 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 [trier of fact] is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the [trier of fact] not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022.5(a).” (People v. Granado, supra, 49 Cal.App.4th at p. 325; see also People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059-1060 [menacing display of firearm during robbery supported personal use enhancement].) Indeed, a personal use enhancement may be upheld even if the victim did not actually see the weapon, so long as the defendant made the victim aware of the weapon’s presence in a threatening manner. (See People v. Jacobs (1987) 193 Cal.App.3d 375, 380-381 [use enhancement upheld for defendant who told salesman he had a gun and audibly cocked an unseen weapon]; but see People v. Granado, supra, 49 Cal.App.4th at pp. 322-324 [disapproving of dictum in Jacobs suggesting verbal threats are required].)
The cases appellant cites for a contrary conclusion are distinguishable. In People v. Hays (1983) 147 Cal.App.3d 534, 539, 544, the defendant crashed through the ceiling of a worker’s office with a sawed-off rifle held in a sling across his chest. No witness observed him touch the rifle or display it in a menacing manner. (Id. at p. 544.) Because the weapon was only “passively displayed” in its sling, and the display was not accompanied by any threats of violence, the court concluded the defendant’s conduct was more akin to being armed with a weapon than personal use of a weapon. (Id. at pp. 548-549.) Similarly, in Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 997, the defendant entered a convenience store and asked the clerk to go outside and call the police. The clerk noticed a gun lying on top of a candy rack about a foot away from the defendant, and when he asked whether it was a BB gun the defendant shook his head and told the clerk “not to worry, ‘I’m not going to hurt you. You’re a cool guy. But I’m on a suicide mission.’ ” (Ibid.) The defendant later “said his plan was to commit ‘suicide by cop.’ ” (Id. at p. 998.) The appellate court reversed the personal use enhancement to a burglary charge because there was no evidence the defendant took any action with respect to the shotgun or used the weapon in any way to facilitate a crime. (Id. at p. 1005.) He did not touch the gun or even draw attention to its presence. (Ibid.) Here, by contrast, appellant described himself as “strapping” and actively lifted his shirt to display the revolver in his waistband to Jonathan. A threat that he would use the gun if Jonathan did not surrender his property was implicit in appellant’s actions; indeed, the evidence suggested no purpose for his deliberate display of the weapon other than accomplishing the robbery. Because Jonathan’s testimony established that appellant used the revolver to facilitate a robbery, substantial evidence supports the personal use enhancement. (See id. at p. 1005 [use enhancement is supported if there is gun-related conduct coupled with intent for this gun-related action to facilitate a crime].)
II. Sustained Allegation for Receiving Stolen Property Must Be Reversed
The juvenile court sustained allegations of second degree robbery and of receiving stolen property, i.e., Jonathan’s gold teeth. However, as the Attorney General concedes, a person may not be convicted of both stealing property and receiving the same stolen property. (§ 496, subd. (a); see also People v. Garza (2005) 35 Cal.4th 866, 874-875.) Although the court attempted to resolve this problem by staying appellant’s confinement term for receiving stolen property, “[t]his treatment overlooks . . . the basic problem of whether defendant may properly be convicted of both charges . . . .” (People v. Jaramillo (1976) 16 Cal.3d 752, 757.) The appropriate remedy is to reverse the lesser conviction for violation of section 496, subdivision (a). (People v. Stephens (1990) 218 Cal.App.3d 575, 587.) Because sentence for this charge was stayed pursuant to section 654, our decision will not change appellant’s maximum term of confinement.
DISPOSITION
The sustained allegation in count 10 for receiving stolen property (§ 496, subd. (a) [gold teeth]) is reversed. In all other respects, the judgment is affirmed.
We concur: Siggins, J. Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.