Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09SF0499, John Conley, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted defendant Raul Morales Perez of second degree robbery (Pen. Code, § 211; all statutory references are to the Penal Code unless noted), and found he personally used a firearm during commission of the offense (§ 12022.53, subd. (b)). We appointed counsel to represent Perez on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against his client, but advised this court he found no issues to support an appeal. We provided Perez 30 days to file his own written argument. That period has passed, and we have received no communication from him. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we conclude there is no basis to reverse the judgment.
An information filed October 22, 2009, charged Perez with the offense and special allegation listed above. At the jury trial in May 2010, Richard Amaral testified he worked at a 24-hour convenience store in Dana Point on April 6, 2009. Around 4:00 a.m., Perez entered the store with a gun at his side. He said, “[D]on’t hit the alarm. I don’t want to hurt you. Give me all the money.’” Perez then racked the handgun. Amaral described the weapon as a black semi-automatic Glock, Sig Sauer or Beretta nine millimeter, similar to a handgun Amaral owned. Perez placed his hand on the counter and asked Amaral to pull the cash drawer out. Amaral gave him $40 from the drawer and Perez departed. Police later extracted Perez’s fingerprint from a paper invoice on the store’s counter.
Amaral had heard the “racking sound before.” He had served in the Army from 1968 to 1971, owned several firearms, including handguns, and visited a shooting range at least once a month, where he fired several different firearms. He explained, “In the weapons that I use that I shoot with, it was the same sound that I heard. A pivot.... [T]he barrel, there’s a pivot in there. And what happens is when you chamber a round, this has to drop for the next round to come out of the clip and go in. It’s a distinct sound. It can’t be missed.” Amaral had no doubt Perez had a “real” gun.
Amaral had also fired “Airsoft” pellet guns, which fires plastic pellets using compressed air. Amaral explained an Airsoft pellet gun can appear similar to a real gun, but has different dimensions, and “you can see it’s plastic” and “can... tell by simply looking at it that it’s an Airsoft gun.” The interior diameter of an Airsoft gun barrel is much smaller than a real gun. Also, racking an Airsoft gun makes a “plastic going against plastic” sound.
Perez’s former longtime girlfriend, Crystal Little, testified she never had seen Perez with a real gun, but he did have access to his nephew’s Airsoft gun. On the night of the robbery, he asked her to drive him to his mother’s house. He had the Airsoft gun tucked in his pants. He was intoxicated, and they argued en route. Perez asked her to let him out of the car in Dana Point, near where his mother lived. He told her to wait, but she left. After Perez’s arrest, Little claimed she picked up Perez’s possessions, including the Airsoft gun, from Perez’s sister’s house.
Perez’s investigator testified he interviewed Amaral on March 9, 2010, and showed Amaral several photographs of the Airsoft gun. Amaral said, “I believe this is the gun” and “yes, this is the gun.” Amaral testified he merely acknowledged the gun in the photographs was similar in size, color, and length to the gun Perez used in the robbery.
The prosecutor and his investigator, who acquired the Airsoft gun from Little on March 17, 2010, performed a demonstration with Amaral. The investigator racked the Airsoft gun, then racked a Glock handgun. After the investigator racked the Glock, Amaral said “it sounded like that.” The prosecutor repeated the demonstration during the trial.
The jury convicted Perez as noted above. In August 2010, the trial court sentenced him to 13 years in prison, comprised of the three-year midterm for robbery and a consecutive 10-year term for use of a firearm.
Discussion
Counsel identifies two potential issues appearing in the record: (1) Whether the trial court erred in permitting the use of a demonstration gun at trial; and (2) whether there was sufficient evidence Perez used an actual firearm, rather than an Airsoft pellet gun.
Demonstration
As noted above, the prosecutor and his investigator conducted a pretrial experiment and demonstration with Amaral, and repeated the demonstration during Amaral’s trial testimony. In both instances Amaral observed the racking of both an Airsoft gun and a real firearm. Experimental evidence is admissible if the experiment is relevant, is conducted under conditions similar to those of the actual occurrence, the individual testifying is qualified, and the evidence does not consume undue time, confuse the issues, or mislead the jury. (People v. Bonin (1989) 47 Cal.3d 808, 847.) Here, the court did not abuse its discretion in determining these foundational criteria were satisfied. The demonstrative evidence was relevant because it allowed Amaral and the jurors to compare the sound of an Airsoft pellet gun and the sound made by racking a real gun similar to the weapon Amaral testified Perez possessed during the robbery. The experiment was conducted under conditions similar to those of the actual occurrence, the investigator was qualified to conduct the experiment, and the evidence did not consume undue time, confuse the issues, or mislead the jury.
Sufficiency of the Evidence
Section 12022.53, subdivision (b), provides, “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including second degree robbery], 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.”
We review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence, defined as evidence that is reasonable, credible, and of solid value. (People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Johnson (1980) 26 Cal.3d 557, 576-578; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) The test is whether substantial evidence supports the verdict, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Thus, we must affirm the judgment below unless “upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) It is the jury’s exclusive province to assess the credibility of the witnesses, resolve conflicts in the testimony, and weigh the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The fact the circumstances can be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Accordingly, a defendant “bears an enormous burden” when challenging the sufficiency of the evidence. (Sanchez, at p. 330.)
Amaral, who had ample personal experience with handguns and Airsoft pellet guns, entertained no doubt Perez had a “real” gun. He testified Perez’s gun was a black semi-automatic, similar to the handgun Amaral owned. Amaral recognized the distinctive sound made by racking a real firearm, compared to the plastic sound an Airsoft gun made. He also noted Perez’s gun had a much larger diameter interior barrel than an Airsoft gun. Substantial evidence therefore supports the section 12022.53 finding.
Disposition
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.