Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Carlos A. Cabrera, Judge, Super. Ct. No. F07904492
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
Dameond Keshon Young was convicted of two counts of robbery (Pen. Code, § 211). The jury also found true the allegation in count 1 that he personally used a firearm within the meaning of section 12022.53, subdivision (b). With all applicable enhancements, Young was sentenced to 13 years in prison.
All further statutory references are to the Penal Code unless otherwise specified.
Young’s only argument on appeal is that the personal use of a firearm enhancement was not supported by substantial evidence. We disagree and will affirm the judgment.
DISCUSSION
Young’s convictions arose from the robbery of two retail establishments, a movie rental store and a shoe store. In each case, Young was positively identified as the robber by the respective store employees. The enhancement at issue arose out of the robbery at the movie rental store, so we will focus on the pertinent testimony from that robbery.
Aaron Orozco was working at the video game department of a movie rental store on May 1, 2007, at 6:00 p.m., when he was “held up at gunpoint.” He was standing near the entrance of the store when three gentlemen walked into the store. One of the gentlemen, whom Orozco identified at trial as Young, asked him to come over to one end of the store. When Orozco arrived he saw Young had a gun in his hand. Young ordered Orozco to “give me the fuckin’ PS-3’s.” Young was holding the gun at his side. When Orozco did not immediately respond, Young pointed the gun upwards and said, “this ain’t no mother fuckin’ game, go get me those fuckin’ PS-3’s now.” Orozco described the gun as a small black revolver. Orozco retrieved two game consoles and handed them to Young. One of the other men shoveled several games into a blue duffel bag. A customer called the police and Young and his two companions left.
Referring to the Sony PlayStation 3 video game consoles.
The gun was not fired, but Orozco did not believe the gun was a toy gun or a BB gun. Orozco could not tell if the gun was a replica because he did not have an opportunity to examine it. The gun did not have any orange markings on it.
Fresno Police Officer David Surabian testified that replica hand guns usually have an orange tip on the front of the gun. Surabian has seen cases where the orange tip of the gun has been painted black. Replica guns do look realistic and could pass for a firearm.
Young argues that this evidence, the entirety of the evidence relating to use of a firearm in the video store robbery, was insufficient to prove that he used a firearm. Specifically, Young argues the item held by him during the robbery may have been a replica gun.
To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403 (Maury).) The record must disclose substantial evidence to support the verdict — i.e., evidence that is reasonable, credible, and of solid value —“‘“such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citation.]” (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (Maury, at p. 403.) A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’” the jury’s verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. (Maury, supra, 30 Cal.4th at p. 396.) We “must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]” (Ibid.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion that the circumstances also might reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal. (Ibid.)
Orozco’s testimony provided substantial evidence that Young was armed with a firearm within the meaning of section 12022.53, subdivision (b). He described the item in Young’s hand as a small black revolver, a term commonly used to refer to a type of firearm. In addition, Young used the item to threaten Orozco to ensure compliance with his demands. In other words, Young intimated to Orozco that the gun was authentic. Young’s evidence at trial did not establish the item was a replica gun, only that Orozco did not test the weapon to ensure it was indeed a firearm and not a replica. While Young’s argument was appropriate to make to the jury, the evidence was sufficient to permit the jury to infer the firearm was authentic and not a replica. The jury was justified in concluding, as Young demanded that Orozco conclude, that the weapon was a firearm.
The cases cited by the parties support our conclusion. In People v. Monjaras (2008) 164 Cal.App.4th 1432 (Monjaras)the court addressed an argument that is virtually identical to Young’s argument. Monjaras approached the victim, a young woman, in a lighted parking lot late at night. He demanded the victim give him her purse. To encourage compliance, he pulled up his shirt, displaying what the victim believed was a gun. The victim admitted at trial that she could not be sure whether the gun was real or not. Monjaras asserted this evidence was insufficient to support the section 12022.53, subdivision (b) enhancement that was found true by the jury.
The appellate court, in an attempt to put to rest this “moribund claim,” (Monjaras, supra, 164 Cal.App.4th at p. 1435) noted that “Most often, circumstantial evidence alone is used to prove the object was a firearm. This is so because when 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; and in any event, victims often lack expertise 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.” (Id. at p. 1436.) Since circumstantial evidence is sufficient to support a true finding on this gun use enhancement, “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.]” (Id. at pp. 1436-1437.)
The appellate court concluded, “As the old saying goes, ‘if it looks like a duck, and quacks like a duck, it’s a duck.’ The pistol tucked into defendant’s waistband looked like a firearm, and it in effect communicated that it was a firearm when defendant menacingly displayed it and ordered the victim to give him her purse. While it is conceivable that the pistol was a toy, the jury was entitled to take defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand. [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. [Citation.]” (Monjaras supra, 164 Cal.App.4th at p. 1437.) We agree with this analysis and, despite Young’s attempts to convince us otherwise, conclude there is no meaningful manner to distinguish this case from Monjaras.
The other cases cited by Young are inapposite. The issue in People v. Vaiza (1966) 244 Cal.App.2d 121 was whether the object used by the defendant in a confrontation with police officers was a real weapon, or a toy as claimed by the defendant. While the judgment was reversed because the trial court erroneously admitted some evidence, the question of whether the evidence was sufficient to support the judgment was not discussed. In People v. Reid (1982) 133 Cal.App.3d 354, the People conceded at trial that the gun used in several robberies was a toy. The issue on appeal was whether this toy could be considered a dangerous weapon if used to strike someone. While the appellate court concluded there was insufficient evidence that the defendant intended to use the toy weapon as a bludgeon, this conclusion is not helpful to our analysis in this case. Similarly, in People v. Godwin (1996) 50 Cal.App.4th 1562, the appellate court found there was no evidence that the defendant used a starter pistol as a bludgeon. None of these cases addresses whether a positive identification of a weapon is necessary to support a firearm enhancement.
DISPOSITION
The judgment is affirmed.