Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. VA102855, Robert J. Higa, Judge.
Dennis.L. Cava, 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, Chung L. Mar, Alison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Oscar Alfredo Yanez was convicted by jury of 16 counts of robbery (counts 1-16; Pen. Code, § 211), first degree residential burglary (count 17; § 459) and making criminal treats (count 18; § 422) with special findings that he used a knife (§ 12022, subd. (b)(1)) in the commission of six robberies (counts 2-5, 14, and 15), a screwdriver in the commission of one robbery (count 6), and used or armed himself with a firearm (§§ 12022.53, subd. (b): 12022.5, subd. (a)) in the commission of two robberies (counts 13, 16) and the criminal threats count (count 18). Appellant was sentenced to 35 years state prison and appeals on the ground that the firearm enhancements are not supported by the evidence. We affirm with directions to correct clerical errors in the abstract of judgment. The sentence is the same, 35 years.
All statutory references are to the Penal Code.
Facts
During a seven week crime spree, appellant burglarized a residence, committed 16 store robberies, and threaten to kill one of the robbery victims. Appellant used a handgun to commit two different robberies and robbed one victim (Nora Gomez) twice, the first time with a knife, and the second time with a handgun, We limit our discussion to the firearm enhancement evidence.
Guzman – Count 13
Appellant entered the El Picosito restaurant on September 23, 2007, drew a black handgun, and robbed Yuridia Guzman. (Count 13.) A surveillance video was played to the jury showing appellant pointing the handgun at Guzman. Guzman testified that the handgun looked real but knew little about firearms and could not tell the difference between a real and fake gun.
Gomez – Counts 16 & 18
Appellant robbed Nora Gomez at Stephanie's Market on September 15, 2008 with a 10 inch knife. (Count 16.) Pressing the knife against her neck, appellant took money and instructed Gomez not to call the police.
Appellant returned to the store on October 9, 2007, with a handgun in his waistband and said, "Today, I'm here to kill you, because you called the police, and I told you not to." Appellant ordered Gomez to "[g]ive me all the money you have." Holding a black handgun with his left hand, he grabbed the store money. Before leaving, appellant warned Gomez, "If you call the police, I'll be back, and I'll slash your face." At trial, Gomez did not know whether the handgun was real or a fake.
Appellant defended on the theory that no handgun was found and there was no evidence it was a "real" firearm. The jury was instructed: "A firearm is any device, designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. [¶] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. A firearm does not need to be loaded." (CALCRIM 3146; see §12001, subd. (b), defining "firearm".)
Circumstantial Evidence
Where, as here, the challenge is to the sufficiency of the evidence, " '[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) The judgment may not be set aside for insufficiency unless it is clear that on no hypothesis whatever is there substantial evidence to support the verdict. (People v. Cuellar (2008) 165 Cal.App.4th 833, 838.)
Appellant asserts that the evidence does not support the inference that the handgun was a firearm because the victims could not say whether the handgun was real or fake. In People v. Monjaras (2008) 164 Cal.App.4th 1432 (Monjaraz), the Court of Appeal rejected a similar argument. There, the defendant pulled up his shirt, displayed the handle of a black pistol which was tucked in his waistband, and ordered the victim to turn over her purse. After the victim surrendered her wallet, an accomplice pressed something against the victim's back and took her purse. Defendant contended that the firearm enhancement was not proven because the victim could not say whether the pistol was a gun or a toy.
The Court of Appeal rejected the argument as a "moribund claim." (Id., at p. 1435.) "[W[hen 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)." (Id., at p. 1437.) The Monjaras court held that circumstantial evidence alone was sufficient to support the finding that the object used by defendant was a firearm. (Id., at p. 1436.) "[W]hen 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;... victims often lack experience 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. " (Ibid.)
The Monjaras opinion is here controlling. The manner in which appellant carried the handgun, displayed it, and threatened the victims supports the finding that it was a firearm. Guzman testified that the handgun was black and had a brown grip, that it looked real, and that she yelled when appellant pointed it at her. A cook pled with appellant not to harm Guzman, supporting the inference that the cook believed it was a real handgun.
The evidence also supports the finding that appellant used a firearm in the Gomez robbery. After appellant entered the store, he pulled up his shirt to display the handgun and said that he was there to kill and rob Gomez. Appellant held the black gun in his left hand and grabbed money with the other hand. It is highly unlikely that appellant would show up with a toy gun, having robbed Gomez three weeks earlier with a large knife. "[T]he 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. [Citation.]" (Monjaras, supra, 164 Cal.App.4th at p. 1437.)
Under appellant's construction of the law, a gun-wielding defendant could rob a blind person or a child and never be found to have used a firearm with a use enhancement unless it is seized at or near the scene of the crime. Jurors, however, can employ common sense and experience in determining whether a handgun that looks and is used like a firearm is real or a toy. Here appellant's words and display of the handgun was part of the res gestae and permitted the jury to infer that it was a firearm. (See, e.g., People v. Newman (1951) 102 Cal.App.2d 302, 306; Monjaras, supra, 164 Cal.App.4th at p. 1437; People v. Dominguez (1995) 38 Cal.App.4th 410, 421-422 [display of firearm, with threat to use it]; People v. Green (1985) 166 Cal.App.3d 514, 517 [character of weapon established by circumstantial evidence].) "Testimony by witnesses who state that they saw what looked like a gun, even if they cannot identify the type or caliber, will suffice. [Citations.]" (People v. Aranda (1965) 63 Cal.2d 518, 532.)
Abstract of Judgment
Appellant argues, and the Attorney General agrees, that the abstract of judgment incorrectly states that a two year consecutive sentence was imposed on count 18 for making criminal threats. The abstract of judgment also states that a 10 year firearm use enhancement (count 13/Guzman robbery) was imposed based on "12022(B)(1)PC" rather than section 12022.53, subdivision (b). The trial court is directed to correct the clerical errors in the abstract of judgment. (See People v. Little (1993) 19 Cal.App.4th 449, 452 [clerical error in abstract of judgment may be corrected at any time].)
Selecting count 13 (Guzman robbery) as the principle term, the trial court sentenced appellant to three years state prison plus 10 years on the firearm use enhancement (§12022.53, subd. (b)). On counts 1 through 17, appellant was sentenced to one-third the midterm plus one-third the applicable weapon/firearm enhancement (§§ 12022, subd. (b)(1); 12022.53, subd. (b)), to run consecutive to count 13, for a total aggregate sentence of 35 years. On count 18 for making criminal threats, the trial court sentenced appellant to eight months (one-third the midterm) plus 18 months (one-third the arming enhancement; §12022.5, subd. (a)), to run concurrent to the principle term.
We affirm the judgment with directions to correct the abstract of judgment to reflect that: (1) the 10-year firearm use enhancement on count 13 is based on section 12022.53, subdivision (b), and (2) a two year concurrent sentence was imposed on count 18 for making criminal threats. The trial court shall transmit the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., COFFEE, J.