Opinion
G057680
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE GABRIEL MEZA, Defendant and Appellant.
John F. Shuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18WF1003) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. John F. Shuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Jose Gabriel Meza appeals from the judgment of conviction entered after a jury found him guilty of committing second degree robbery and finding true the personal use of a firearm sentencing enhancement allegation in the commission of that offense (Pen. Code, § 12022.53, subd. (b)). Defendant's sole contention on appeal is that the firearm sentencing enhancement must be struck because insufficient evidence showed the object he used in the commission of the robbery was an actual firearm. We reject defendant's contention and affirm.
All further statutory references are to the Penal Code.
FACTS
Jose Michel operated a video store in Stanton that he used as a front for his illegal gambling business. About 3:00 a.m. on April 30, 2018, Michel announced "last call," informing the 10 patrons inside the establishment that he would be closing up the shop in 15 minutes; defendant and Edward Castro were among the patrons gambling on the video game machines after Michel's announcement.
Shortly before 3:30 a.m., Michel walked over to the "Tiger Blast" machine where an older woman asked to be cashed out. While Michel crouched down near the machine, Castro approached him and held what Michel thought was a .45 or 9 millimeter handgun to the back of Michel's head. After Castro said, "[e]mpty out the money," Michel compliantly moved about the room collecting money from cash boxes. Castro also said, "[d]on't move," and fired the gun he was holding; a 9 millimeter luger cartridge casing was later recovered from a trash can and a bullet was recovered from behind the north wall of the establishment.
Meanwhile, defendant had taken out a firearm which he brandished to "hold[] everybody at bay." Michel described Castro's and defendant's firearms as "two black handguns, possibly a .45 or 9MM."
After Michel heard someone say, "I'm not playing around," Michel followed further instructions to go into his office and empty two cash registers containing about $8,000.
Orange County Deputy Sheriff Jasen de Pasquale testified that he reviewed surveillance video of the robbery and compared it to some of the still photographs that had been generated from the video. He opined the object in defendant's hand during the robbery was a semiautomatic firearm based on how defendant held it; de Pasquale testified it appeared Castro was similarly armed with a semiautomatic firearm. De Pasquale testified his opinion was based on "several guns I have come across in my law enforcement career, as well as having my own—having several, shooting several, and having familiarity with them." He also noted the surveillance video showed defendant and Castro both kept their index finger next to, but not on, the trigger most of the time. No firearms were recovered.
PROCEDURAL HISTORY
Defendant was charged in an information with attempted murder (§§ 664, subd. (a), 187, subd. (a)) and second degree robbery (§§ 211, 212.5, subd. (c)). As to the attempted murder count, the information alleged defendant acted willfully, deliberately, and with premeditation within the meaning of section 664, subdivision (a). The information also alleged, pursuant to section 12022.53, subdivision (b) and within the meaning of sections 1192.7 and 667.5, that defendant personally used a firearm during the commission of both charged offenses. The information further alleged, pursuant to section 667.5, subdivision (b), defendant had served a prior prison term.
After the jury trial, in a minute order dated April 26, 2019, the trial court stated: "Based on the Court's offer to strike the defendant's prior for the purpose of sentencing, both counsel waive the Court Trial on the prior." Our record does not show any true finding made on that allegation; the record does not show defendant admitted its truth or that the court made such a finding. The trial court did not impose any sentence regarding the prior prison term sentencing enhancement and no reference is made to it in the abstract of judgment. We therefore conclude that enhancement allegation was fully stricken by the court and do not reference it further.
The jury found defendant guilty of second degree robbery but not guilty of attempted murder. The jury found true the enhancement allegation that defendant personally used a firearm during the commission of the attempted robbery within the meaning of section 12022.53, subdivision (b).
The trial court sentenced defendant to a total prison term of 13 years by imposing the three-year middle term for the robbery offense and a consecutive 10-year term for the firearm sentencing enhancement. Defendant appealed.
At the sentencing hearing, the trial court acknowledged it had discretion to strike the 10-year firearm sentencing enhancement; for reasons stated on the record, the court declined to exercise that discretion.
DISCUSSION
Defendant's sole contention on appeal is that the firearm sentencing enhancement should be struck because insufficient evidence showed the object he used in the commission of the robbery was an actual firearm. We disagree.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Section 12022.53, subdivision (b) provides that "any person who, in the commission of a felony specified in subdivision (a) [including 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." A firearm, within the meaning of that code section, "means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion." (§ 16520, subd. (a); see § 12001 [definition of firearm in § 16520, subd. (a) applies to § 12022.53, subd. (b) enhancement].) "Circumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm." (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436 (Monjaras).)
The jury was instructed on the firearm sentencing enhancement with CALCRIM No. 3146: "If you find the defendant guilty of the crime charged in Count 2, you must then decide whether[] the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime. [¶] 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."
The appellate court in Monjaras, supra, 164 Cal.App.4th 1432 rejected a substantial evidence challenge similar to that raised by defendant in this case. In Monjaras, the defendant, during a late night robbery in the lighted parking lot of an apartment complex, told the victim, "'Bitch, give me your purse,'" pulled up his shirt, and displayed the handle of a black pistol that was tucked into his waistband. (Id. at p. 1434.) The victim, who had previously seen guns, but never handled one, testified the pistol looked like a gun and that it made her feel scared. (Id. at p. 1436.) She testified that she "'assumed' the pistol was 'real' and handed over her pocketbook." (Ibid.) After the victim was asked by the defendant's trial attorney what she thought the pistol was made of, the victim testified: "'Probably metal because—I don't know. Wasn't wood, wasn't plastic. I don't know if it was plastic or metal. . . . He [didn't] show it to me. He just [did] "this" to me [pulled up his shirt and displayed the pistol].'" She further testified that she could not say for certain whether the pistol she saw was "'a toy or real or not.'" (Ibid.)
"Pointing out that the victim could not say whether the pistol in defendant's waistband was a gun or a toy, and making the dubious assertion that he 'did not undertake any behavior suggesting that he would fire the weapon,'" the defendant in Monjaras argued the firearm enhancement allegation under section 12022.53, subdivision (b) "was sustained merely on conjecture about the nature of the alleged weapon." (Monjaras, supra, 164 Cal.App.4th at p. 1435.) The defendant thus contended "'there was no evidence of a gun presented to the jury to support an inference the weapon was real' and, thus, the firearm use enhancement must be reversed." (Ibid.)
In rejecting the defendant's argument, the Monjaras court stated: "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].' . . . [¶] 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." (Monjaras, supra, 164 Cal.App.4th at pp. 1436-1437.)
The court in Monjaras, supra, 164 Cal.App.4th at page 1437 explained: "Common sense and common experience illustrate that little has changed since 1927, when a court astutely observed that criminals 'do not usually arm themselves with unloaded guns when they go out to commit robberies' [citation]. If anything, with the proliferation of handguns in America since 1927, robbery has become a more dangerous crime today because of the greater likelihood that victims will protect themselves by using deadly force against the robber. Consequently, it is all the more unlikely today that robbers use toy guns or unloaded or inoperable weapons." --------
The Monjaras court concluded: "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." (Monjaras, supra, 164 Cal.App.4th at pp. 1437-1438.)
Here, the evidence showing defendant personally used an actual firearm is stronger than that considered sufficient in Monjaras. Trial evidence showed defendant and Castro had planned to rob Michel shortly before closing as they both sprang into action and brandished black handguns that looked to Michel to be either 9 millimeter or .45 handguns. Castro held his gun to Michel's head and demanded he collect money; defendant's role was to brandish his gun to keep everyone inside the establishment "at bay" during the course of the robbery. Michel told law enforcement personnel that the handguns Castro and defendant used during the robbery looked similar to each other; following Castro's discharge of his handgun, a 9 millimeter cartridge casing was discovered in the trash and a bullet was found behind a wall. De Pasquale testified that in his training and experience, the gun defendant was seen holding in the surveillance video looked like an actual semiautomatic handgun. In addition, the way defendant held the gun, and, in particular, that he kept his finger close to but not on the trigger of the gun, provides further support defendant was holding an actual firearm. More than substantial evidence supported the jury's true finding as to the firearm sentencing enhancement.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.