Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F03620
BLEASE, Acting P. J.
A jury convicted defendant Celso Portillo of two counts of robbery (counts I and II) and convicted defendant Daniel Aguilar of three counts of robbery (counts I, II and III) and one count of attempted robbery (count IV), and found Aguilar personally used a firearm in committing counts III and IV. (Pen. Code, §§ 211, 664, 12022.53, subd. (b).) The trial court sentenced Portillo to four years in state prison, and Aguilar to 18 years in state prison. Each defendant timely appealed.
Aguilar contends no substantial evidence shows he used a gun in committing counts III and IV, or that he committed a robbery, as opposed to a theft, in the incident supporting count II. Portillo also contends the incident in count II was a theft, not a robbery, and further contends that no substantial evidence supports his liability as an aider and abettor of whatever crime was committed in that incident. We reject each of these claims and affirm the judgments.
FACTS
Counts III and IV (robbery and attempted robbery) were based on testimony by two teenage boys that on February 8, 2007, Aguilar drove up to them, displayed a firearm, and demanded money. After one boy threw defendant his cell phone, Aguilar left.
Count I was based on a March 30, 2007, robbery at Los Nopales Carniceria. Sometime around lunch, Aguilar ordered some meat from the butcher. Portillo brought a broom to Flora C., the cashier, asked its price, then returned the broom. As Flora C. rang up Aguilar’s purchase, Aguilar pointed to a bulge at his waistband and said “‘If you don’t open it, I have a pistol with me and I will kill you.’” As Aguilar took money, Portillo told him to check under the coins. Flora C. testified she felt scared later, but told a peace officer she was scared during the robbery. Defendants ran out together. Aguilar was described as tall, about 6’5”, weighing about 200 pounds, while Portillo was described as about 5’7”, weighing about 160 pounds.
Count II was based on testimony that about an hour after the butcher shop robbery, Aguilar and Portillo committed a robbery at Panaderia Las Tres Espigas. Two men, one skinny and one big and heavy, weighing about 240-260 pounds, entered the store and went to the refrigerator case to get sodas. Both went to the counter, and when the owner rang up the purchase and opened the cash register drawer, the larger of the two men (Aguilar), leaned over the counter, grabbed the money tray and ran off, cursing. The owner screamed, but was too scared to try to stop Aguilar. Defendants ran out of the bakery and then got into a four-door burgundy-colored car, and were driven away by a third person.
The next morning, a peace officer found defendants riding as passengers in a car matching the getaway car.
The jury could see defendants in court, and the probation reports describe Aguilar as 6’1” and weighing 260 pounds, and Portillo as 5’7” and weighing 160 pounds.
There was no dispute about identity. Aguilar argued there was no evidence he used a gun, and the crime committed at the bakery was theft, not robbery. Portillo also argued the crime at the bakery was theft, not robbery, and argued he did nothing to aid Aguilar’s crime.
STANDARD OF REVIEW
Each of the contentions raised in this appeal consists of a no substantial evidence challenge. Substantial evidence is evidence that is reasonable in nature, credible, and of solid value, and it is the exclusive province of the jury to determine the credibility of witnesses and to draw reasonable inferences from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 578.)
DISCUSSION
I
Both defendants contend no substantial evidence supports a conviction for robbery at the bakery (count II), because no force or fear was used to take the cash drawer, therefore the crime was at most a theft. We disagree.
Robbery is “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.” (Pen. Code, § 211; see People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.) The requisite fear is “fear of an unlawful injury to the person or property of the person robbed[.]” (Pen. Code, § 212, subd. 1.) Fear may be proven by the circumstances involved in the taking of property. (People v. Holt (1997) 15 Cal.4th 619, 690.) The fear need not be induced by an explicit threat, and it is sufficient if there is evidence to support an inference that the victim was in fact afraid. (People v. Flynn (2000) 77 Cal.App.4th 766, 771-772; People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2.)
“[T]he fear necessary for robbery is subjective in nature, requiring proof ‘that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’” (People v. Anderson (2007) 152 Cal.App.4th 919, 946; see People v. Cuevas (2001) 89 Cal.App.4th 689, 698 [actual fear by victim required, but it “may be inferred from the circumstances, and need not be testified to explicitly by the victim”].)
People v. Brew (1991) 2 Cal.App.4th 99 found ample evidence of fear on quite similar facts. Brew, a large man, approached a cashier and pretended to purchase an item. When she opened the cash register, he put himself between her and the cash register, causing her to step back in fear. (Id. at p. 104.)
In this case, defendant Aguilar, a large man, approached the victim, pretended to purchase an item, then suddenly reached over the counter to grab the money tray from the cash register, then ran off, cursing as he fled. The victim was too scared to try to prevent Aguilar’s escape. The fact Aguilar did not explicitly threaten harm does not mean he did not employ fear to accomplish the taking. The jury could rationally conclude that the victim’s reaction was genuine, and objectively reasonable.
Accordingly, substantial evidence shows the crime committed at the bakery was a robbery, not merely a theft.
II
Portillo contends no substantial evidence supports his liability as an aider for count II (the bakery), because so far as the record shows, he was merely present when Aguilar committed a crime. He relies on the rule that aider liability must be based on more than mere presence with the actor. (See People v. Joiner (2000) 84 Cal.App.4th 946, 967.)
“‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’ [Citations.] [¶] ‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’” (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).)
“‘[A]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’” (Campbell, supra, 25 Cal.App.4th at p. 409; see In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
Portillo was present with Aguilar at the robbery of the butcher shop, where he aided Aguilar by encouraging him to look under the coins; further, he fled from the butcher shop with Aguilar, showing his continued association with him. On appeal, Portillo does not dispute the sufficiency of the evidence of his liability as an aider of the butcher shop robbery.
About an hour after the robbery at the butcher shop, Portillo entered the bakery with Aguilar, fled with Aguilar after Aguilar grabbed the cash drawer, and got into a car with Aguilar, which was driven off by another person. Portillo was found the next morning in that getaway car, with Aguilar.
From these facts, the jury could rationally infer that Portillo was Aguilar’s partner in the bakery robbery, ready to assist him if necessary as he had done shortly before at the butcher shop, and that Portillo was not a mere bystander at the bakery. (See In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095 [minor “was present at the scene of the crime and had fled with the perpetrator and two others after the crime had been committed and was still in their company shortly thereafter”].)
III
Aguilar contends no substantial evidence supports the finding that he used a real gun in counts III and IV, when he confronted the two boys and demanded their money.
According to one boy, Aguilar said “I’ll shoot you” while pointing a gun the boy thought was real, silver but with a golden hue in the sun, a “little.22 handgun.” The other boy testified the gun looked real, a “small silver handgun[,]” and stated “It’s not [every day] that somebody tries to rob someone with a fake gun.” Neither boy was familiar with guns: One had never seen a real one, and although the other had seen a handgun fired and had looked at gun magazines, he could not tell a revolver from a semiautomatic. Each boy conceded the gun might not have been real.
Based on this lack of certainty in the testimony, Aguilar contends no substantial evidence supports the conclusion he used a real gun, as opposed to a toy, replica or BB gun. Our recent decision in People v. Monjaras (2008) 164 Cal.App.4th 1432 resolves this contention of error:
“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].’ [Citation.] 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].’ [Citation.] Accordingly, jurors ‘may draw an inference from the circumstances surrounding the robbery that the gun was not a toy.’ [Citation.]
“. . . . . . . . . . .
“. . . . . . . . . . .
“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.” (Id. at pp. 1436-1437.)
In this case, although the boys could not say with certainty that the object was a real gun and not a toy or replica gun, it appeared to them to be real, and Aguilar treated it as if it were real in making his threat. On this evidence, the jury could rationally conclude the gun was a real gun.
DISPOSITION
The judgments are affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.