Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F04099
CANTIL-SAKAUYE, J.
A jury convicted defendant Arlando Algere of the robbery of Kevin Kelly (Pen. Code, § 211--count 1), the robbery of Michael Hudson (§ 211--count 2), and carjacking from Kevin Kelly (§ 215, subd. (a)--count 3). As to each count the jury found defendant used a firearm in the commission of the offense (§ 12022.53, subd. (b)), and as to counts 1 and 3 that he inflicted great bodily injury (§ 12022.7, subd. (a)).
Hereafter undesignated statutory references are to the Penal Code.
Sentenced to state prison for 22 years and four months, defendant appeals contending the evidence is insufficient to support the firearm use enhancement attached to count 2, the robbery of Michael Hudson. Disagreeing, we shall affirm the judgment.
FACTS
In May 2006, following an argument with her boyfriend Mark Anthony Antonucci, Ashley Morgan went to the apartment of a friend and eventually met up with Kevin Kelly, Michael Hudson, and Krystal Webb. About 9:30 p.m., Morgan called Antonucci and asked for a ride, but he was unable to pick her up at that time. Later, Kelly, Hudson, Webb and Morgan went riding in Kelly’s Thunderbird and Morgan stayed in touch by cell phone with Antonucci, telling him that Hudson and Kelly had wanted her to become a prostitute. Antonucci was not pleased. He told Morgan that if she told him where she was things wouldn’t be as bad for her, but if he had to come and find her she could “Kiss [her] ass good-bye” and that what would happen to Kelly and Hudson would not be “pretty.” Morgan kept Antonucci apprised of the Thunderbird’s location.
Antonucci was charged as a codefendant in the case. Morgan testified under a grant of immunity.
Shortly thereafter, while Morgan was still on the phone with Antonucci, she saw Antonucci driving his Mazda in the opposite direction and so informed him. Antonucci, who was accompanied by defendant, turned and followed the Thunderbird. Antonucci signaled for the Thunderbird to pull over and both cars pulled behind a market.
Morgan walked to the Mazda where Morgan spoke with Antonucci. Webb, Kelly, and Hudson remained in the Thunderbird. Morgan moved about five steps away from the Mazda, and Webb got out of the Thunderbird and stood next to her. Antonucci and defendant got out of the Mazda; Antonucci was holding a “silver.38” handgun in his hand and defendant went to the Mazda’s trunk and retrieved a shotgun. Morgan saw Antonucci and defendant, each holding a firearm, approach the Thunderbird and one of them called out, “‘Get out of the ‘F’n car.’” Kelly and Hudson complied and Antonucci ordered them to “turn over their property.” Both began emptying their pockets as defendant pointed the shotgun toward the Thunderbird. Antonucci took items from Hudson while defendant, who was on the opposite side of the vehicle from Hudson, took items from Kelly and struck him with the shotgun. Antonucci and Morgan drove off in the Mazda while defendant took the Thunderbird.
DISCUSSION
Defendant contends that because his liability for the robbery of Hudson was as an aider and abettor to Antonucci, who was the perpetrator, he therefore “could not properly be found to have personally used a firearm where his sole liability was vicarious.” The argument is not persuasive because it is based upon an inaccurate view of the law.
“‘A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements.’ [Citation.] The enhancement is not limited ‘to situations where the gun is pointed at the victim....’ [Citation.] Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of the underlying crime. [Citations.] [¶] ‘Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure.’” (People v. Carrasco (2006) 137 Cal.App.4th 1050 1059-1060.) One personally uses a firearm when he or she “commits an act which renders him [or her] criminally liable, whether directly or vicariously... if he [or she] personally uses a firearm during that act.” (In re Antonio R. (1990) 226 Cal.App.3d 476, 479; accord, In re Londale H. (1992) 5 Cal.App.4th 1464, 1468.)
A prime example of the application of these principles is set forth in People v. Donnell (1975) 52 Cal.App.3d 762, cited with approval in approved in People v. Calhoun (2007) 40 Cal.4th 398, at page 404. Evidence at trial showed that Donnell, holding a shotgun, entered a bank, stood by the door and yelled, “‘This is it. Everyone to the floor,’” while his two confederates each armed with handguns, robbed the bank. (People v. Donnell, supra, at pp. 767, 778.) On appeal, Donnell contended there was no evidence that he “used” the shotgun during the robbery and, therefore, a firearm use enhancement under section 12022.5 should be stricken. (Id. at p. 778.) The court responded: “It is absurd to suggest that using a shotgun to intimidate the persons in the bank while confederates rob the bank is not using the firearm in the commission of a robbery or even to suggest that the presence of the shotgun did not produce a ‘fear of harm or force’ by means of its display.” (Ibid.)
There is no analytic difference between the circumstances in Donnell and those in the instant case. Defendant and Antonucci, each armed with a firearm, approached the Thunderbird and ordered the occupants out. Defendant took items from Kelly while Antonucci did the same from Hudson. It is absurd for defendant to argue that his display of the firearm at the time that either he or Antonucci ordered Kelly and Hudson out of the Thunderbird was not a “personal use” of the firearm which facilitated the robbery of each victim, even though defendant neither pointed the gun directly at Hudson nor personally took any items from him. Consequently, substantial evidence supports the challenged firearm use finding.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J., NICHOLSON, J.