Opinion
F074203
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSE MONTIJO, Defendant and Appellant.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF162000A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Ellison, J.†
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INTRODUCTION
Appellant Jesse Montijo was convicted by a jury of second degree robbery (Pen. Code, § 212.5, subd. (c)) and an enhancement for personal use of a firearm (§ 12022.53) was found true. Appellant was sentenced to the mid-term sentence of three years for robbery, and 10 years for the gun enhancement, for an aggregate determinate term of 13 years in state prison.
All further statutory references are to the Penal Code.
Appellant does not contest his robbery conviction, but asserts there was insufficient evidence to support the gun use enhancement. He cites the trial testimony of the victim, the only witness to the robbery, noting the victim was unable to say for certain that he saw appellant with a gun. He argues from that testimony that the evidence was insufficient to support the jury's finding on that enhancement. After reviewing all the evidence presented at the trial, we conclude there was sufficient evidence to support the jury's finding that appellant used a gun and affirm the judgment.
In supplemental briefing, appellant presents a second claim, arguing that even if sufficient evidence supports the enhancement, in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), the matter should be remanded to the trial court to determine whether the court should exercise its discretion to strike the enhancement. We agree and remand for the court to exercise its discretion under section 12022.53, as amended.
FACTUAL AND PROCEDURAL BACKGROUND
While the victim, Angel R., was walking to high school, a man on a bicycle approached him and asked to use his cell phone. Angel refused and the man demanded that Angel give him his valuables. Threatening that he had a gun, which he referred to as "a .22 beast," the man pulled up his "bottom shirt" to reveal what appeared to Angel to be the grip of a gun in his waistband. Complying with his demand, Angel gave him his cell phones and other property. Within minutes, Angel called 911 to report the robbery. In that call, he described the suspect, his clothing, including a black sweatshirt, and advised that the suspect had a gun. Shortly thereafter, the police arrived and spoke with Angel, obtaining a description of the gun in the suspect's waistband, which Angel said was similar to the black grip portion of the officer's gun. He also described the property taken: two cell phones, headphones and a gold chain.
Less than 20 minutes after the 911 call, police apprehended appellant while riding his bicycle in a neighborhood within two miles of the scene of the robbery. When asked by police what he was doing there, appellant told them he was looking for a friend's house. While still detained by police, Angel identified appellant as the man who robbed him. On searching appellant, police found the property Angel had described. When asked about the property, appellant claimed he had "bought [it from] that guy."
In their search of appellant, the police did not find a gun. Nor did they find him in possession of the sweatshirt mentioned in the suspect description. In searching an area in which appellant had been seen riding just prior to being apprehended, the police did not find a gun; however, they did discover the sweatshirt.
Testifying at trial more than eight months later, Angel could not be certain that he saw a gun in appellant's waistband, or that the object he saw was in fact the grip of a gun. He confirmed telling the 911 operator he had seen a gun and truthfully describing to officers what he had seen as the grip of a gun. He acknowledged that his memory of events was better on the day he spoke with officers and made the 911 call.
Appellant testified at trial in his own defense. Although he denied having a gun when arrested, he acknowledged telling Angel he had a gun. At trial, he claimed he used his own cell phone to commit the robbery, not a gun. Although he testified he used a cell phone, not a gun, to commit the robbery, he conceded he did not mention any of that to the police in his postarrest statement, but wished he had. When asked on cross- examination to describe how he used his cell phone, he insisted the phone was not in his waistband as Angel testified, but instead was in his hand.
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
A state court conviction not supported by sufficient evidence violates the due process guarantees of the federal and California Constitutions and is therefore invalid. (People v. Rowland (1992) 4 Cal.4th 238, 269.) In determining whether a criminal conviction is supported by sufficient evidence for purposes of federal due process, a reviewing court must "determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318 (Jackson).) In Jackson, the Supreme Court explained that "this inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." (Id. at pp. 318-319, fn. omitted.)
The standard under our state Constitution is "identical." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87.) As our Supreme Court has explained, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence is evidence that "maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined." (People v. Conner (1983) 34 Cal.3d 141, 149.) The "whole record" includes "the entire picture of the defendant put before the jury" and is not limited "to isolated bits of evidence" selected by an appellant. (People v. Johnson, supra, at p. 577; see People v. Medina (2009) 46 Cal.4th 913, 919.) "'The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.'" (People v. Casares (2016) 62 Cal.4th 808, 823; see People v. Bean (1988) 46 Cal.3d 919, 932.)
B. Analysis
Section 12022.53 prohibits personal use of a firearm in the commission of certain enumerated felonies, including robbery. (Id., subds. (a)(4), (b).) A "'firearm' means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion." (§§ 12001, 16520, subd. (a).) Toy guns, for example, do not qualify as firearms, nor do pellet guns or BB guns because they use means other than explosion or other combustion to expel a projectile. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).)
"[S]ince 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 ...." (Monjaras, supra, 164 Cal.App.4th at p. 1436.) For that reason, circumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm.
Thus, the court in Monjaras held that when a suspect commits a robbery by displaying an object that looks like a gun, the object's appearance and the suspect'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). (Monjaras, supra, 164 Cal.App.4th at p. 1437.)
In Monjaras, during the course of a robbery, the perpetrator lifted his shirt to display what appeared to the victim to be the handle of a gun in his waistband. (Monjaras, supra, 164 Cal.App.4th at p. 1434.) At trial, the victim was uncertain whether what she saw was a real gun. (Id. at p. 1435.) Despite that uncertainty, the jury found the gun enhancement true. On appeal, the court held that a witness's description of an object believed to be a gun, together with the perpetrator's words and conduct relating to that object, were sufficient circumstantial evidence to support the jury's finding. (Id. at pp. 1437-1438.)
Likewise, we conclude the circumstantial evidence in the instant case was sufficient to support the jury's finding that appellant used a firearm in the commission of the robbery, considering the whole record in the light most favorable to the jury's finding. Although Angel was uncertain at the time of trial that what he saw was a gun, his identification of the object as a gun, both in the 911 call and in his contemporaneous statement to the police, was unequivocal, describing what he saw as the grip of a gun similar to the officer's firearm. The jury was properly instructed they could consider Angel's contemporaneous statements as evidence that the information in those statements was true, despite any conflict they might find with his trial testimony on that subject. (CALCRIM No. 318.)
Moreover, the notion that what Angel saw was not a gun, but rather a black cell phone, rested entirely on appellant's testimony and an inference that he had not disposed of the gun before he was apprehended. The jury heard evidence disputing the credibility of appellant's testimony and discrediting that inference. In addition to his three felony convictions, the jury heard that appellant lied to the police about how he obtained Angel's property and lied about being in the neighborhood to visit a friend. Moreover, his testimony about how he used his cell phone to commit the robbery directly contradicted the victim's account as to how the robbery occurred. Finally, the jury heard evidence that, although no gun was found, appellant did in fact dispose of clothing after the robbery to avoid detection, supporting the reasonable inference he had done the same with the gun during the 20 minutes preceding his capture.
On an appeal challenging the sufficiency of circumstantial evidence, a reviewing court neither reweighs evidence nor reevaluates a witness's credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Viewing the evidence in the light most favorable to the verdict, we find substantial evidence of reasonable, credible and solid value supporting the jury's finding that appellant personally used a firearm under section 12022.53, subdivision (b).
The standard for sufficiency of the evidence is the same whether challenging a conviction or sentencing enhancement, as is the case here. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) --------
II. Remand in Light of Senate Bill 620
Appellant contends in supplemental briefing that remand is appropriate in light of Senate Bill 620, which gives a trial court discretion to strike firearm enhancements. The People agree that remand is appropriate to allow the court to exercise its discretion whether to strike the firearm enhancement.
We agree that Senate Bill 620 applies retroactively. If an amended statute "lessening punishment becomes effective prior to the date the judgment of conviction becomes final then ... it, and not the old statute in effect when the prohibited act was committed, applies." (In re Estrada (1965) 63 Cal.2d 740, 744; see People v. Francis (1969) 71 Cal.2d 66, 75-76.) Here, the amendment took effect before appellant's conviction became final and, therefore, Senate Bill 620 applies retroactively. (See People v. Vieira (2005) 35 Cal.4th 264, 306 ["'for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed'"].)
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Consistent with subdivision (b) of section 12022.53, the trial court imposed an additional, mandatory 10-year prison term at the time of sentencing. We will remand the matter to the trial court to permit it to consider exercising its discretion as contemplated under Senate Bill 620.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with directions to exercise its discretion under Penal Code section 12022.53, subdivision (h) as amended by Senate Bill 620, and, if appropriate following exercise of that discretion, to resentence appellant accordingly. If the trial court resentences appellant, it shall cause to be prepared an amended abstract of judgment reflecting the new sentence and shall cause a certified copy of same to be transmitted to the appropriate authorities.
† Retired Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.