IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 24, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GARY LAMONT BUNN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F06142)
The opinion of the court was delivered by: Hull , J.
P. v. Bunn
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Gary Lamont Bunn was convicted of five counts of robbery (Pen. Code, § 211 (counts one through four and seven); undesignated statutory references are to the Penal Code) and two counts of attempted robbery (§§ 664/211 (counts five and six)) with enhancements for personal use of a firearm, elder victimization, and in-concert. (§§ 12022.53, subd. (b) (counts one through seven), 667.9, subd. (a) (count three), 213 (counts one through four and seven).) The trial court sentenced defendant to 37 years in state prison.
On appeal, defendant contends there is insufficient evidence to support the sentence enhancements for personal use of a firearm alleged in counts two and three. We reverse the enhancements in those counts and remand for resentencing.
At around midnight on July 7, 2008, defendant, Reginald Williams, and Jamal Lewis went to the South Sacramento residence of Barbara C. to commit a robbery. Defendant and Williams entered the house through the unlocked garage door while Lewis remained in the car.
The 65-year-old Barbara C. awoke to find defendant and Williams entering her bedroom. Williams held a gun to her head while defendant, who was also armed, ransacked her house. They took her credit and ATM cards, jewelry, other items, and obtained her personal identification number for her ATM card.
Lewis then drove off with defendant and Williams. Defendant unsuccessfully tried to use the ATM card to withdraw money at a nearby ATM. He next used Barbara C.'s card to pay for gas at a nearby gas station and for food at a local fast food restaurant. Defendant then went to an Elk Grove Wal-Mart, where he unsuccessfully tried to withdraw cash with the ATM card.
Counts Two and Three
Defendant, Williams, and Lewis ended up at the apartment of Stephen Crisler, who agreed to join the three in another robbery. They waited about four hours and went to a senior citizens' apartment complex near Barbara C.'s home. Lewis again remained in the car, while defendant, Williams, and Crisler went to one of the apartments. Defendant and Williams carried handguns.
Defendant kicked in the front door and the robbers entered the apartment. Seventy-one-year-old Oscar J. and his wife Ruby were asleep in separate bedrooms when Oscar heard a noise at the front door. Williams went into Oscar's room while defendant and Crisler went to the apartment's other rooms. Williams put his gun in Oscar's face and demanded guns and money. Crisler took Oscar's wallet and defendant took a shotgun from behind Oscar's bedroom door. The robbers also took cash, a cell phone, a pliers set, gold dollars, Ruby's purse, a laptop computer, and a Game Boy.
During the robbery, Oscar heard someone in his wife's room and heard another person throwing things in the living room. Williams testified to hearing a lady scream from another room.
Counts Four through Seven
Defendant, Williams, and Lewis robbed the South Sacramento residence of Maria Z. during the early morning of July 9, 2009. Defendant and Williams were both armed; Lewis initially stayed in the car. The house was occupied by Maria Z., her children Jeanette and Josh, and Josh's girlfriend Monique H.
Defendant kicked in the front door and grabbed Maria from the kitchen. Williams entered Jeanette's room and, with gun drawn, told her to be quiet or he would kill her. Defendant told Jeanette they would not hurt her and then put Maria on the bed with Jeanette. After a few minutes, he took them to sit at the dining room table.
Williams went to the other bedroom where he pointed a gun at Josh's head and asked where was the girl. Josh told him she was in the bathroom; Williams ordered Josh to the floor, got Monique H. from the bathroom, and put her on the floor next to Josh. Defendant and Williams then ordered Josh and Monique H. to join Maria and Jeanette at the dining room table.
Defendant pointed his gun at the victims as they sat at the table. He later unloaded the weapon, put it on the table, and told the victims to hold it, which they declined. Lewis entered the apartment towards the end of the robbery and helped them carry the proceeds to the car. They took cash, clothing and shoes, a cell phone, a purse, and a Play Station.
Defendant contends there is insufficient evidence to support the sentence enhancements for personal use of a firearm with respect to the robberies in count two, the robbery of Ruby J., and count three, the robbery of Oscar J. The Attorney General concedes the contention as to count three but contests the claim on count two. We agree with defendant on both counts.
In determining the sufficiency of the evidence, we ask "'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.]" (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Section 12022.53, subdivision (b), provides: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), 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." Use of a firearm is defined elsewhere as: "to display a firearm in a menacing manner, to intentionally fire it, [or] to intentionally strike or hit a human being with it . . . ." (§ 1203.06, subd. (b)(2); see CALCRIM No. 3146 [incorporating definition of personal use from § 1203.06]; People v. Johnson (1995) 38 Cal.App.4th 1315, 1319 [§ 1203.06 used to define personal use in gun enhancement statute].) An accidental or inadvertent display of a firearm will not support the enhancement. (People v. Granado (1996) 49 Cal.App.4th 317, 323.)
There is evidence defendant participated in the robbery at Oscar J.'s home and that he was armed, but there is no evidence that Oscar J. saw defendant, let alone saw him display the weapon menacingly or use it. Conceding this point, the Attorney General argues there is sufficient evidence that defendant personally used a gun in robbing Ruby J. in count two. The evidence shows that Williams went into Oscar J.'s room while defendant and Crisler went into the apartment's other rooms. Defendant was armed during the robbery, and Williams testified that he heard Ruby J. scream from the other room. From this, the Attorney General infers that Ruby J. screamed because defendant was in her room armed with his weapon.
The Attorney General's argument presumes too much. Defendant and Crisler went into the apartment's other rooms. There is no evidence that it was defendant rather than Crisler who was in Ruby J.'s room when she screamed. There are many reasons that Ruby J. could have screamed. She could have screamed at an unknown man--defendant or Crisler--entering her room. She could have screamed upon hearing Williams threaten her husband in his room. And, she could have screamed after seeing defendant inadvertently display his weapon.
While we must draw all inferences in support of a verdict, those inferences must be reasonable before we can do so. The inferences the Attorney General would have us draw to support the section 12022.53 enhancement in count two are too many and too remote to support the verdict. The inferences the Attorney General asks us to draw from this record are not reasonable.
Since there is insufficient evidence to support the section 12022.53 enhancements in counts two and three the enhancements are reversed. As count three was the principal offense, we shall remand the matter for resentencing.
The sentence enhancements for personal use of a firearm (§ 12022.53, subd. (b)) alleged in counts two and three are reversed and the matter is remanded to the trial court for resentencing.
We concur: RAYE , P. J. ROBIE , J.
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