Opinion
G030122.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO GONZALES, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
Jose Antonio Gonzales contends insufficient evidence supports the personal use of a firearm enhancement that added 10 years to his robbery sentence. (See Pen. Code, § 12022.53, subd. (b); all further statutory references are to this code unless otherwise indicated.) Gonzales also argues the trial court erred in failing to instruct on the lesser allegation of being armed with a firearm, rather than personally using it, and that the court erred in not instructing on lesser included offenses to robbery. We find no merit in these contentions and therefore affirm.
I
After some coaxing, Gonzales admitted to two detectives that he robbed a Carls Jr. restaurant. One detective began the questioning by stating, "I need you to be honest about whats going on right now. The hardest thing to do is to say the first, the first part. But I need you to be honest about what, when you went back to Carls [Jr.,] what went on today? Nows the time when I need you to do that. . . . When you went back into Carls [Jr.,] did you use a real gun? Or was it a, a toy gun when you took the money? First steps the hardest." After Gonzales asked if his companion was "sittin in jail too?," the other detective said, "Hes not sittin in a jail cell. Thats honest. I can look you in the eye and tell you that at this time. Now its time for you to look me in the eye and tell me."
The other detective soon elicited from Gonzales that he "went up to the counter and . . . asked them for money." That detective then asked, "OK. When you asked them for the money did you have anything in your hand or anything." Gonzales confessed, "Yeah, a fake gun." Gonzales insisted it was "a little toy gun," "a little small one," "like, um, you know . . . those little ones that shoot darts." He said he had painted it to look like a real gun. He also said he did not point it at the cashier and manager behind the counter, but rather just "kind of held it up so they could see it."
After hearing the testimony of the cashier and the restaurant manager, which we discuss below, the jury convicted Gonzales of second degree robbery and found true the personal use of a firearm enhancement. Gonzales now appeals.
II
A toy gun does not qualify as a firearm for the use enhancement under section 12022.53, subdivision (b). (People v. Jackson (1979) 92 Cal. App. 3d 899, 903, fn. 7, 155 Cal. Rptr. 305.) "` Whether the defendant . . . personally used a firearm [is a] factual question[] for the jurys determination. [Citation.] . . ." (People v. Dominguez (1995) 38 Cal.App.4th 410, 421 (Dominguez).) On appeal, we may not substitute our judgment for the jurys on factual issues. (People v. Ceja (1993) 4 Cal.4th 1134, 1138, 847 P.2d 55 (Ceja).) Rather, we ""must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] The court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] . . ." [Citation.]" (Dominguez, supra, 38 Cal.App.4th at p. 421.) The testimony of one witness is sufficient to prove a fact. (Evid. Code, § 411; People v. Hunter (1989) 49 Cal.3d 957, 977, 264 Cal. Rptr. 367, 782 P.2d 608.)
Here, the restaurant manager had experience handling guns. He knew, for instance, that the ammunition for an automatic pistol like Gonzaless was loaded through the bottom of the handle instead of on the side as for a revolver. The manager had a good view of defendants gun both when it was pointed at the cashier from inches away and when Gonzales stepped behind the counter and trained it on him from close range. He had seen toy guns made out of plastic, but Gonzaless seemed instead to consist of "regular material for [a] gun." The manager believed the gun was real; he shook with fear.
In the course of his testimony, the manager noted the gun did not have a safety cap in its barrel as many toy guns do. Gonzales seizes on this fact to suggest the manager was not credible, given that many toy guns do not have safety caps and, tragically, are nonetheless mistaken even by police for real guns. But witness credibility was for the jury to decide and we may not reweigh it. (Ceja, supra, 4 Cal.4th at p. 1138.) Gonzales cites cases in which the victim felt the cold metal of a gun barrel at the back of his neck or heard the cock of an unseen gun, and observes that the manager did not have such tactile or auditory confirmation here. (Dominguez, supra, 38 Cal.App.4th at p. 414; People v. Jacobs (1987) 193 Cal. App. 3d 375, 380-381, 238 Cal. Rptr. 278.) But tactile and auditory confirmation in those cases were only relevant because the victims could not see the gun. Here, the manager got a good look at Gonzaless gun from close range and that was sufficient evidence for the jury to credit his belief it was a real firearm. Gonzaless argument to the contrary is without merit.
III
The trial court has a sua sponte duty to instruct on lesser included offenses where the evidence is "substantial enough to merit consideration by the jury. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162, 960 P.2d 1094.) Gonzales contends the court should have instructed the jury on the lesser allegation of being armed with a firearm, rather than personally using it, and on theft, grand theft, grand theft from a person, and attempted robbery as lesser included offenses to robbery. We disagree.
There was no evidence Gonzales merely had his gun on his person and did not brandish it. (Compare § 12022, subd. (a) [arming enhancement] and CALJIC No. 17.15 ["The term `armed with a firearm means knowingly to carry a firearm [or have it available] for offensive or defensive use"] with § 12022.53, subd. (b); CALJIC No. 17.19, and People v. Bland (1995) 10 Cal.4th 991, 997, 898 P.2d 391, original italics ["`Use" means "to carry out a purpose or action by means of, to `make instrumental to an end or process, and to `apply to advantage.. . . [P] In contrast, arming . . . does not require that a defendant utilize a firearm or even carry one on the body"].) Gonzales suggests "it was unclear whether the gun was ever pointed at either [the cashier] or [the manager]." To the contrary, their testimony was that each shook with fear as Gonzales leveled the gun first at one and then the other. Substantial evidence does not support the instruction Gonzales now says should have been given; the court did not err.
Similarly, substantial evidence does not support Gonzaless new lesser included offenses argument. Robbery is a felonious taking accomplished by force or fear. (§ 211.) No evidence suggests the force or fear element was not present, and thus there is no merit to Gonzaless contention that theft, grand theft, and grand theft from a person instructions were required. (See generally People v. Bradford (1997) 14 Cal.4th 1005, 1055, 929 P.2d 544 [theft distinguished from robbery by lack of element of force or fear].)
Gonzales argues an attempted robbery instruction was required because the cashier could not open her register but had to call the manager to open that register and several others. The evidence, however, does not support a merely attempted robbery instruction because Gonzaless robbery of the cashiers register (and all the others) was completed. (See People v. Pham (1993) 15 Cal.App.4th 61, 68 ["defendant was not entitled to an instruction on attempted robbery since such a theory was contrary to the evidence"].)
IV
The judgment of the trial court is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.