Filed 2/6/14 P. v. Diaz CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137397
v.
DON RODRIGO DIAZ,                                                    (Solano County
                                                                     Super. Ct. No. FCR290514)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         Appellant Don Rodrigo Diaz appeals from his convictions for second degree
robbery with a firearm (Pen. Code,1 §§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), and
for being a felon in possession of a firearm (§ 12021, subd. (a)(1)) following a jury trial.
On appeal, he challenges the sufficiency of the evidence showing that he possessed a
firearm at the time he committed the second degree robbery,2 or that he was otherwise in
possession of a firearm within the meaning of the relevant statutes.
         We conclude there was substantial evidence supporting the jury’s findings, and
therefore, affirm the judgment.



         1
         All further statutory references are to the Penal Code, unless otherwise
indicated.
         2
       Appellant does not contest the robbery conviction; only the firearm use
enhancement and the separate possession of a firearm count.


                                                             1
                                              II.
                             PROCEDURAL BACKGROUND
       An amended information was filed on April 4, 2012,3 by the Solano County
District Attorney’s Office charging appellant with one count of second degree robbery
(§ 211) (Count One), and one count of possession of a firearm by a felon (§ 12021,
subd. (a)(1)) (Count Two). Sentencing enhancements were alleged as well in the
amended information. As relevant to this appeal, two such enhancements were that
appellant personally used a firearm in the commission of Count One, within the meaning
of sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b). Appellant pleaded
not guilty to the charges and denied the sentencing enhancements allegations at his
arraignment.
       On August 20 the prosecution filed a motion to amend the information further by
changing the sentencing enhancements relating to appellant’s prior criminal record. The
motion was granted without objection at the commencement of the jury trial on
August 22. A jury was empanelled on August 22 and the attorneys made their respective
opening statements before the trial adjourned for the day.
       Testimony commenced and was completed the following day on August 23. The
jury commenced its deliberations on August 24, and returned its verdict on the morning
of August 27. The jury convicted appellant of both counts and found true the sentencing
enhancement that he personally used a firearm in the commission of the second degree
robbery. The court then conducted a bifurcated trial and found true the sentencing
enhancements alleging appellant’s prior convictions.
       Prior to sentencing, appellant made a motion to strike the prior convictions for
sentencing purposes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497. The motion was heard and denied on December 3. The case was then set for
judgment and sentencing on December 6.



       3
           All dates are in the 2012 calendar year, unless otherwise indicated.


                                               2
       At sentencing the trial court imposed the midterm of 2 years in state prison for the
second degree robbery (Count 1), and a consecutive term of 10 years for the personal use
of a firearm enhancement, for a total aggregate state prison term of 12 years. A 2-year
state prison term was also imposed for possession of a firearm by a felon (Count 2), but
that term was ordered to be served concurrently with the aforementioned 12-year
sentence. Total custody credit of 361 days was awarded, and fines and penalties
imposed. Notice of appeal was filed on December 10.
                                            III.
       EVIDENCE ADDUCED AT TRIAL RELATING TO THE FIREARM
        POSSESSION CHARGE (COUNT 2) AND THE PERSONAL USE
                        ENHANCEMENT

       Gustavo Nava testified that he was working as a lube technician at the 7 Flags Car
Wash and Lube Express (7 Flags) in Fairfield on January 26, where he had worked for
about five years. On that day, appellant, who formerly worked at 7 Flags, approached
Nava. Appellant had not worked at 7 Flags for the preceding two years. The two started
a conversation that was cordial, and appellant appeared to be calm and quiet. After a few
minutes appellant put on some white latex gloves, which Nava thought was odd. Their
conversation ended when the manager, Matthew Bodiford, asked Nava to leave the lube
shop office where he and appellant had been conversing.
       Bodiford testified that he had worked at 7 Flags for about ten years as the assistant
manager, and during that time had worked with appellant for approximately two years.
On January 26, Bodiford was in the office “counting the drawers” and getting ready to
close for the day when appellant entered the office. Bodiford thought it was odd since he
had not seen appellant since he left 7 Flags.
       Appellant asked Bodiford if the security camera in the office was working, which
made Bodiford nervous. Appellant looked around the office and commented that he “just
came to get what is mine.” They were interrupted when the manager opened the door
briefly, and then closed it and walked away.




                                                3
       Just before the manager opened the door, and when appellant was saying he was
there to get what was his, he pulled up his shirt and showed Bodiford the handle of a gun
stuck in his waistband, and also said he was not there to hurt Bodiford or his family.
Bodiford was “nervous as hell” and “afraid” because he did not know if appellant
intended “hit me or shoot me in the back.”
       Appellant asked Bodiford for the keys to the cash drawers, which were outside in
the lube shop. As Bodiford then went out to the lube area to the cash drawers, appellant
followed him. Bodiford brought the drawers back into the shop and placed them on a
desk. Appellant asked Bodiford to bag up the money. Bodiford asked appellant if he was
serious, and appellant responded “[y]es.” When Bodiford did not comply, appellant
grabbed the paper money from the drawers. Bodiford saw that appellant was wearing
white latex gloves on his hands.
       The gun Bodiford saw was silver and had a black grip. It appeared to be real.
Appellant was standing about a foot and a half from Bodiford when he showed him the
gun. Bodiford looked at the gun for about 10 seconds. Appellant then ordered him to go
into the back room. Bodiford complied because he was scared, testifying that “[w]hen
you see somebody has a gun, you do what they say.” He then heard a door shut. He
waited an additional 15 or 20 seconds and then opened the back room door. Appellant
was gone.
       There was nothing about the appearance of the gun that suggested it was a fake.
Bodiford had seen guns on television and on the street, and the one in appellant’s
waistband appeared to be real. On cross-examination, Bodiford explained that his father
had worked at a prison so he was familiar with guns. Bodiford also owned an air soft gun
with a clear casing, but he had also seen air soft guns that were not clear. He stated that
he had fired a .22-caliber handgun, and did not know the difference between a revolver
and a semi-automatic handgun.
       Bodiford was interviewed after the robbery by Fairfield Police Officer Joseph
Griego. The officer asked Bodiford to describe the weapon appellant had on his person
that day. He said it was silver with black grips. Bodiford did not “sound too familiar


                                             4
with guns.” When asked if the gun was real, Bodiford said he did not know, but that “it
looked real enough.”
       The defense case began with appellant calling Kurt Morales as a witness. Morales
testified that he had known appellant since they were children. He saw appellant a few
days prior to learning about the robbery when appellant stopped by where Morales was
working. Morales had a CO2 cartridge pellet gun that was not working properly. The
gun had to be loaded one pellet at a time. It was silver with a black plastic grip and
“look[ed] like a real” semi-automatic handgun. The hammer was jammed and “you
could not pull the trigger.”
       Morales also testified that the gun was plastic and would not appear to be real “in
broad daylight. Maybe if the lights were dim . . . .” If a person glanced at it quickly, it
would appear real. It did not look real to Morales because there was a screw on the
bottom of the handle “where you put the CO2.” Morales testified that “[i]f you looked at
the gun, you would definitely see [a] knob on the bottom of the handle.” The knob
protruded about half an inch to an inch and could not be removed.
       Morales had purchased the pellet gun about 12 years earlier. He used to carry it in
his briefcase because he thought it was “cool.” After it broke, he still kept it. Morales
had it at his workplace for about a year before he gave it to appellant. He kept it at his
workplace because he originally planned to set up a target range with another employee,
but the gun broke before they could do it. Morales has not seen appellant since the
afternoon when he gave him the pellet gun.
       The prosecution recalled Bodiford, who testified that he was only able to see the
handle of the gun in the waistband of appellant’s pants when he pulled up his shirt. There
was nothing protruding from the end of the handle. Bodiford could only see the hammer
and butt of the gun.
                                             IV.
                                       DISCUSSION
       To clarify the issue we must decide in this appeal, we note initially that appellant
has not challenged the sufficiency of the evidence to support his conviction for second


                                              5
degree robbery. The only issue is whether the firearm enhancements under sections
12022.5, subdivision (a)(1) and 12022.53, subdivision (b) alleged and found true by the
jury, and his separate conviction for being a felon in possession of a firearm under section
12021, subdivision (a)(1) (Count 2), were supported by substantial evidence.
       A “firearm” is defined, for purposes of the two challenged enhancements and
Count 2, as “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).) The parties agree that if appellant displayed a pellet gun and not a “real”
firearm, there was no substantial evidence to support the true findings on the two firearm
enhancements or Count 2. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435
(Monjaras).) Thus, the narrow question becomes whether there was substantial evidence
to support the findings that appellant used a firearm in the commission of the robbery,
and not a pellet gun.
       In determining whether a conviction or factual findings by a jury were supported
by substantial evidence “[w]e review claims of insufficient evidence by examining the
entire record in the light most favorable to the judgment below. [Citation.] We review to
determine if substantial evidence exists for a reasonable trier of fact to find the counts
against the [defendant] true beyond a reasonable doubt. [Citation.] Substantial evidence
must be reasonable, credible, and of solid value. [Citation.] We also presume the
existence of every fact the [trier of fact] could reasonably deduce from the evidence in
support of its judgment. [Citation.]” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196;
People v. Young (2005) 34 Cal.4th 1149, 1175.) Our inquiry is directed to whether any
rational trier of fact could have found the elements of the enhancement beyond a
reasonable doubt. We do not resolve credibility issues or evidentiary conflicts, because
that is the exclusive province of the trier of fact. (People v. Martinez (2003) 113
Cal.App.4th 400, 412.) Reversal is not warranted unless it appears “ ‘that upon no
hypothesis whatever is there sufficient substantial evidence’ ” to support the true finding.
(People v. Bolin (1998) 18 Cal.4th 297, 331.)



                                              6
       We conclude that Bodiford’s testimony alone is sufficient to provide a evidentiary
basis for the jury’s findings. (Evid. Code, § 411; People v. Lewis (2001) 25 Cal.4th 610,
646.) Moreover, there are reasonable inferences which could be drawn from Morales’s
testimony which bolsters Bodiford’s conclusion that the weapon appellant showed him
during the robbery was real.
       The gun displayed to Bodiford by appellant was silver and had a black grip, and
appeared to be a real gun. Appellant was standing about a foot and a half from Bodiford
when he showed him the gun. There was nothing about the appearance of the gun that
suggested it was a fake. Bodiford had seen guns on television on the street, and the one
in appellant’s waistband appeared to be real.
       Bodiford further explained that his father had worked at a prison so he was
familiar with guns. He also owned an air soft gun with a clear casing, but he had seen air
soft guns that were not clear. He also had fired a .22-caliber handgun.
       Morales testified that his pellet gun was plastic and it would not appear to be real
“in broad daylight. Maybe if the lights were dim . . . .” The robbery took place in the
office of 7 Flags, and there is no indication that the lights were dim or other than what
one would expect in such a setting.
       Morales also testified that his pellet gun might appear real if someone glanced at it
very quickly. Bodiford did not simply “glance” at the weapon, but looked at it for about
10 seconds.
       As important as any other fact was Bodiford’s testimony that there was nothing
protruding from the end of the handle of the weapon appellant was carrying. Morales
testified that his pellet gun had a screw on the bottom of the handle “where you put the
CO2.” He explained further that if a person saw the handle of the pellet gun, they would
definitely see the knob on the bottom of the handle, which protruded about half an inch to
an inch.
       While there was testimony from which the jury could have believed that appellant
was carrying Morales’s pellet gun, or that Bodiford was not sufficiently experienced with
firearms to know the difference, there also was substantial, believable evidence as noted


                                             7
above from which the jury could conclude that the weapon was a “real” firearm. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
       In the Third District Court of Appeal case of Mojaras, supra, 164 Cal.App.4th
1432, the issue was whether the evidence was sufficient to support the finding that the
defendant personally used a firearm during a robbery within the meaning of section
12022.53, subdivision (b), one of the very same enhancements charged against appellant
here. In rejecting defendant’s challenge to the sufficiency of the evidence, our colleagues
introduced the issue while explaining why it was publishing its decision: “On appeal,
defendant raises a contention that we thought had been put to rest but has resurfaced in a
number of appeals before this court. 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,’
defendant argues the ‘personal use allegation under section 12022.53, subdivision (b),
was sustained merely on conjecture about the nature of the alleged weapon.’ Stated
another way, he claims ‘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. We disagree.
       “Defendant was not engaged in a childhood game of cops and robbers; the robbery
was real, and the evidence supports a reasonable inference that the pistol he used was a
real firearm, not a toy. Our point in publishing this opinion is to say in no uncertain
terms that a moribund claim like that raised by defendant has breathed its last breath.”
(Monjaras, supra, 164 Cal.App.4th at p. 1435.)4



       4
          Despite the intention of the Monjaras court to discourage criminal defendants
from continuously raising this “moribund” sufficiency of evidence claim, a mere three
years later, the Third District found it necessary to reaffirm the rationale in Monjaras and
additionally extend it to findings of firearm usage in assaults (§ 245, subd. (a)(2)), and
personal use of firearms within the meaning of section 12022.5, subdivision (a), the
second enhancement found true in this case. (See People v. Law (2011) 195 Cal.App.4th
976, 979.)


                                             8
       If anything, the evidence in Monjaras supporting the jury’s true finding that the
robbery was committed while the defendant was personally armed with a firearm was
even less weighty than in this case, although the circumstances of the robbery were
remarkably similar: “Here, defendant demanded of the female victim, ‘Bitch, give me
your purse,’ then pulled up his shirt and displayed the handle of a black pistol tucked in
his waistband. The victim, who had seen guns before but had never handled one, testified
she immediately saw that the pistol looked like a gun, and it made her scared. She
‘assumed’ the pistol was ‘real’ and handed over her pocketbook. When asked by
defendant’s trial attorney what the pistol was made of, the victim said: ‘Probably metal
because—I don’t know. Wasn’t wood, wasn’t plastic. I don’t know if it was plastic or
metal. . . . He don’t show it to me. He just do ‘ “this” to me [pulled up his shirt and
displayed the pistol].’ The victim then conceded that she could not say for certain
whether it was ‘a toy or real or not.’ ” (Monjaras, supra, 164 Cal.App.4th at p. 1436.)
       In affirming the defendant’s conviction and the jury’s concomitant “arming”
findings, the Monjaras court concluded that the victim’s testimony was sufficient
circumstantial evidence to support both. (Monjaras, supra, 164 Cal.App.4th at p. 1436.)
The court noted, too, that the defendant’s own words and conduct in the course of the
offense itself supports the fact finder’s determination that the weapon was “real.” (Id. at
pp. 1436-1437.)
       In this regard, reasonable inferences could be drawn from what appellant said to
support the arming findings. When appellant displayed his partially hidden weapon to
Bodiford, he assured Bodiford that he was not there to hurt him, but to get what was his.
This utterance provides the same corroboration found noteworthy in Monjaras.
       In light of the foregoing, we have no hesitation in concluding that the firearm
enhancements under sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b)
alleged and found true by the jury, and appellant’s separate conviction for being a felon
in possession of a firearm under section 12021, subdivision (a)(1) (Count 2), were
supported by substantial evidence.



                                             9
                                 IV.
                           DISPOSITION
The judgment and sentence imposed below are affirmed.




                                  10
                                 _________________________
                                 RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
HUMES, J.




                            11
