APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. (Super. Ct. No. 07F05651)
The opinion of the court was delivered by: Nicholson, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In People v. Monjaras (2008) 164 Cal.App.4th 1432 (Monjaras), this court addressed an oft-raised attack on the sufficiency of the evidence when the prosecution relied on circumstantial evidence to prove that a defendant used a firearm to commit a criminal offense. Noting that circumstantial evidence suffices to establish the sentence enhancement imposed by Penal Code section 12022.53, subdivision (b),*fn2 we conclusively rejected the contention and published our opinion "to say in no uncertain terms that a moribund claim like that raised by defendant has breathed its last breath." (Monjaras, supra, at pp. 1434-1436.)
As in Monjaras, the jury in this case found that defendant Halston Law personally used a firearm within the meaning of section 12022.53, subdivision (b), when he committed a robbery (§ 211). (Monjaras, supra, 164 Cal.App.4th at p. 1434.) The jury in this case additionally convicted defendant of assault with a firearm (§ 245, subd. (a)(2)), and found that in committing both the robbery and assault, defendant personally used a firearm within the meaning of section 12022.5, subdivision (a). Consequently, the trial court imposed an aggregate 13-year prison sentence.
On appeal, defendant attempts to breathe new life into the argument that no inference of firearm use may be derived from circumstantial evidence. Thus, defendant urges us to strike firearm-use enhancements in a case in which his victims testified about his brandishing a "black and big" gun that he thrice shot at the victims after one of them attempted to wrestle the weapon away. In so arguing, defendant contends that Monjaras was incorrectly decided. We disagree and shall reaffirm our conclusion in Monjaras that "'if it looks like a duck, and quacks like a duck, it's a duck.'" (Monjaras, supra, 164 Cal.App.4th at p. 1437.) Moreover, we find the reasoning of Monjaras in rejecting the challenge to circumstantial proof for the section 12022.53 arming enhancement to be equally applicable to similar challenges to convictions for assault with a firearm (§ 245, subd. (a)(2)) and personal use of a firearm as defined by section 12022.5, subdivision (a). In short, the evidence that defendant brandished and repeatedly discharged a firearm at the victims amply suffices to establish defendant's use of a firearm.
We also reject defendant's contention that the trial court abused its discretion by admitting into evidence a bullet found at the scene of the robbery. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Around 7:30 p.m. on June 3, 2007, Belyn Richards was driving through the Oak Park area of Sacramento with her two children in the backseat. Seeing a pedestrian she recognized, Richards pulled over to talk to her friend "Coco." Richards, who was pregnant, discussed her upcoming baby shower with Coco.
Suddenly, a gold-colored Mercedes pulled in front of Richards's car at a diagonal and parked so that her path was blocked. The driver was an African-American woman in her early 20's, who had a hood pulled over her head with blonde hair protruding.
Defendant, who had been riding in the passenger seat of the Mercedes, got out and walked to the driver's side of Richards's car. Through the open window, Richards saw defendant pull a gun from the front of his pants. Holding the gun no more than six inches away from Richards's face, defendant told her: "[G]ive me your money or break yourself." Richards replied, "I don't have anything." Defendant responded, "Give me what you have."
Richards grabbed the barrel of the gun, which she described as "black and big." Snatching the gun back, defendant "clocked [sic] the thing and said, Bitch, you think I'm playing with you . . . ." Richards's oldest daughter testified that she saw Richards "just grabbed the gun and they started tussling for it, but then he pulled it back and it pinched her finger, so she left [sic] go." Richards testified that she cut her hand on the gun when defendant pulled it back.
Defendant reached into the car and took $30 off the passenger seat where Coco had been sitting. Coco had slipped out of the car during the robbery and was standing next to it "in a daze."
Defendant ran back to the Mercedes and got in. As the Mercedes pulled away, Richards memorized part of the license plate. Richards's daughter saw defendant "hanging out the window with the gun and pointing at -- trying to point it at us, and shooting." Defendant fired his gun three times. Richards and her daughters ducked down. None of the shots hit Richards, her daughters, Coco, or the car.
Richards drove to the nearby house of her relatives. She was taken to the hospital to have her hand injury checked. At the hospital, Richards spoke with Sacramento Police Officer Jill Landberg. Richards gave the officer a description of defendant, the Mercedes, its driver, and a partial license plate number. Richards looked at Officer Landberg's gun and described defendant's gun as similar but bigger. Officer Landberg testified that Richards had described a cocking motion by defendant that readies a semiautomatic firearm for firing.
With the vehicle description and partial license plate relayed by Richards, the police searched through a database of vehicles to focus on a gold-colored, four-door Mercedes owned by defendant and his sister, Natalie Law.
At the hospital, Richards told the officer that the robbery occurred at "36th and 5th Avenue in between 6th and 7th" Avenues. Officer Landberg looked for the location described by Richards but found that it did not exist. At approximately 10:40 p.m., Officer Landberg went to Richards's house to clarify the location of the robbery. The officer also took along a photo lineup. Richards identified defendant as the robber. Richards also explained, "she was going down 9th Avenue and she turned on what she thought was 36th Avenue to go towards 5th Avenue. And she said that the robbery occurred between 6th and 7th Avenue." However, given ...