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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Richard James MASBRUCH, Defendant and Appellant.

No. F021472.

Decided: May 22, 1995

Wesley A. Van Winkle, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., W. Scott Thorpe and Ruth M. Saavedra, Deputy Attys. Gen., for plaintiff and respondent.


Appellant's jury trial resulted in convictions for rape (Pen.Code 1 , § 261, subd. (a)(2);  count one), sodomy (§ 286, subd. (c);  count two), burglary (§ 459, 460;  count three), two counts of residential robbery (§ 211, 212.5, subd. (a);  counts four and five), two counts of false imprisonment (§ 236;  counts six and seven), and two counts of torture (§ 206;  counts eight and nine).   The jury found that appellant used a firearm (§ 12022.3, subd. (a)) and inflicted great bodily injury (§ 12022.8) in the commission of the rape and the sodomy.   It found that appellant personally used a firearm (§ 12022.5, subd. (a)) in the commission of the burglary, the residential robberies and the false imprisonments.   The jury also found that the burglary, one of the residential robberies (count five), and one of the tortures (count nine) were committed against a person 60 years of age or older and that appellant inflicted great bodily injury upon that person.  (§ 1203.09.)   The victim in counts one, two, three, four, six and eight was Mary [K.], an apartment house manager.   The victim in counts three, five, seven and nine was Mary's 68–year–old mother, Marietta [K.]

Appellant was acquitted of two counts of assault with force likely to produce great bodily injury.  (§ 245, subd. (a)(1);  counts ten and eleven.)

He was sentenced to state prison for two consecutive life terms for the tortures (counts eight and nine), with those terms to run consecutively to a total determinate term of 45 years, 4 months for the other offenses and enhancements.   A restitution fine of $10,000 was also imposed.


In April 1991, Mary and her mother, Marietta, lived in an apartment in Fresno, California.   Mary acted as the manager of the complex which consisted of 24 apartments.   Her duties included collecting rent, handling inquiries for apartment rentals and scheduling maintenance and repairs.

At about 5 p.m. on the afternoon of April 2, 1991, Mary was fixing dinner when the doorbell rang.   Because Marietta was sick in bed upstairs, Mary answered the door and found appellant standing there.   Appellant inquired if there were any vacancies and asked if he could apply for an apartment.   After discussing the apartment with him, Mary handed appellant an application form to fill out and invited him into the apartment in order to get his name and phone number.

Appellant walked in front of Mary into the living room of the apartment.   He turned around, displayed a gun with a pearl handle and pointed it at her face.   Appellant then told Mary to put her hands up and give him her purse.   Although Mary complied with the demand to raise her hands, she informed appellant that she did not carry a purse.   Appellant demanded to see Mary's checkbook but threw it back down where he found it, remarking that “there's only $50.00 in there.”

Appellant then instructed Mary to go to the kitchen and lay down on the floor.   She did so.   Appellant tied her up with a telephone cord.   Appellant then demanded to know where she kept her cash;  Mary directed him to a buffet drawer where she had hidden $50 in a picture frame.   Upon returning to the kitchen and finding a pair of scissors, appellant cut up a cloth parrot cage cover and used it to tie Mary's hands and feet together.

At approximately 5:15 p.m., Marietta started down the stairway and was met by appellant, who was standing in the living room.   They said “hi” to each other, and appellant informed Marietta that her daughter would like to see her in the kitchen.   Upon entering the kitchen, Marietta was instructed by Mary to “do whatever he says to do, because he has a gun.”

Appellant seated Marietta in a kitchen chair and used strips cut from the bird cage cover to tie her hands and feet and blindfold her.   Marietta informed appellant that she needed her medication, so appellant gave it to her along with a glass of water.

When asked what he wanted, appellant replied that he wanted money and jewelry, so the two women started directing appellant to various locations where money was kept in the house.   After searching each location, appellant returned to the kitchen for more directions.   This process continued for more than an hour, until appellant had made approximately 15 trips up and down the stairs.   At one point, appellant asked Marietta if she would like to lie down, but she declined the offer and remained in the chair.

Appellant then blindfolded Mary with a strip of the bird cage cover.   He spliced together an extension cord, an electric razor cord, vacuum cleaner cord, and an electric clock cord.   After stripping the insulation off the end of the makeshift cord, appellant then applied it to Mary's leg and Marietta's right arm, shocking them with the electrical current and causing them to scream.   He then announced that this was only a warning of what he could do to them.

Appellant rolled Mary over to retrieve the money she kept in her pockets.   He then unzipped Mary's pants, untied a portion of the restraint around her ankles, and inserted his penis into her vagina.   Complaining that Mary was not “cooperating,” appellant then penetrated her anus.

When he had finished raping Mary, appellant walked over to the sink and smoked a cigarette.   He searched through the knife drawer, cursing repeatedly, and knocked loose change around on the kitchen counter.   Shortly thereafter he announced that he was getting ready to leave.   Mary, who was in fear for her life, swore that if he would leave them alone and not kill them, she would not report him to the police.   Appellant then cut up what remained of the parrot cage cover to make gags, and Mary asked him not to gag Marietta because she was afraid her mother would not be able to breathe.   After Marietta promised not to scream, appellant gagged Mary, but not Marietta, and left through the front door.   Mary then moved herself over to her mother so Marietta could cut her loose with the scissors that were left on the floor.   When Marietta had cut the telephone cord around Mary's hands, Mary undid her feet and ran to lock the front door.   Approximately two to two-and-one-half hours had passed since appellant had arrived at the apartment.

Remembering her promise not to call the police, Mary called family friends Shirley and Archie Hawkins to come over to the apartment.   However, after consulting by telephone with her doctor and becoming alarmed by excessive blood when she urinated, Mary finally contacted the police approximately three hours after appellant's departure.

Officer Richard Mata of the Fresno Police Department arrived at the Mary's apartment shortly before 11 p.m.   Mary described the incident to him and reported that her assailant had been a stocky, white male, approximately five-feet eight-inches in height.   Mata observed a single rental application on the buffet and turned it over to Judith Anebalos–Fraser, a bureau technician, to check for fingerprints.   Anebalos–Fraser also collected electrical cords and strips of green cloth found in the apartment.   Mata then accompanied Mary to Valley Medical Center, where she was admitted to the emergency room and was given a pelvic exam by Dr. Diane Ruschke.   Vaginal and rectal sample swabs were obtained by Ruschke and turned over to the Fresno Police.

Upon closer inspection of the house, Mary and Marietta reported they were missing two watches, a Toshiba headset, and a gold ring in addition to the money appellant had taken from various locations in the house.   As a result of having her hands tightly tied during the incident, Mary required an operation for carpal tunnel syndrome and had only partial use of her left hand as of the date of trial.   Mary's finger also required surgery, possibly as a result of the same events.   Marietta developed a compressed vertebra which, in the opinion of Dr. John Reinsch of Kaiser Permanente, could have been caused by a combination of Marietta's preexisting osteoporosis and the trauma of being shocked by appellant.   The injury compelled her to take pain medication on a regular basis.

Evidence technicians were able to lift a usable fingerprint from the rental application, and approximately a year after the incident a statewide computer print search eventually reported appellant as having a similar or matching print.   A comparison of the latent prints on the application with a fingerprint exemplar taken from appellant resulted in a positive match.

On April 27, 1992, Officer Dan Cook of the Fresno Police Department prepared a six-pack photo lineup including appellant's picture and showed it to Mary and Marietta.   Viewing the photos separately, each woman identified appellant as the assailant.   Cook sought a warrant for appellant's arrest.   After determining that a warrant was already in existence, Cook located appellant at the Department of Corrections in Huntsville, Texas.   On May 5, 1993, appellant was extradited and transported to California, along with the gun found in the night stand in appellant's motel room at the time of his arrest.   Body tissue samples were collected from appellant and placed into a sexual assault kit for testing.

Ken Penner, a criminalist employed by the Department of Justice in Fresno, testified that fluid analysis had shown that the man who had raped Mary was a Type A secretor, that appellant was a Type A secretor, and that 32 percent of the male population are Type A secretors.

 Defense Case

Craig Masbruch, appellant's younger brother, testified that he and appellant had been employed as subcontractors to a construction company that had repaired roofs at the apartment complex Mary managed during the early months of 1991.   He said that while the repairs were going on, both he and appellant had entered the manager's apartment on at least six occasions to obtain keys to other units or to use the phone.   He also said he dealt with Mary on those occasions, and that he remembered having seen Marietta in the apartment as well.   He admitted on cross-examination that it was possible he did not work for the roofing company after December of 1990.   A rebuttal witness, the coowner of the contracting business which had employed both appellant and his brother Craig, testified that neither of them worked for the company at all in 1991.

Christine Mueller, a defense investigator, testified she had measured appellant while wearing shoes and that he was five-feet, eleven-and-one-half inches tall in his shoes—three-and-a-half inches taller than Mary had reported to Officer Mata.


Appellant raises six contentions on this appeal.   They are:  (1) his section 12022.3, subdivision (a) firearm use enhancements for the rape and sodomy of Mary (counts one and two) should be stricken because there was insufficient evidence to prove he used a firearm in the commission of those crimes;  (2) his section 12022.5, subdivision (a) personal use of a firearm enhancements for the residential robbery and false imprisonment of Marietta (counts five and seven) should be stricken because there was insufficient evidence to prove that he used a firearm in the commission of those crimes;  (3) his section 12022.8 great bodily injury enhancement for the sodomy of Mary (count two) should be stricken because there was insufficient evidence to prove that the victim suffered “great bodily injury”;  (4) the court erred in refusing to grant appellant's motion for a mistrial after a prosecution witness testified that appellant previously had been imprisoned in Texas;  (5) his section 12022.3, subdivision (a) firearm use enhancements for the rape and sodomy of Mary (counts one and two) should be stricken because the court erred in refusing to instruct the jury with appellant's proposed “pinpoint instruction” regarding use of a firearm;  and (6) the court erred in imposing a $10,000 restitution fine without first holding a hearing on the issue of appellant's ability to pay the fine, and we should remand this case to the trial court for a hearing on that issue.

Respondent concedes there was insufficient evidence to support the jury's finding that Mary suffered great bodily injury as a result of the sodomy (appellant's issue “(3)” above).   The concession appears to be appropriate.   (See People v. Escobar (1992) 3 Cal.4th 740, at pp. 745–750, 12 Cal.Rptr.2d 586, 837 P.2d 1100.)

We therefore turn to appellant's remaining five issues.



 Appellant's sentence included a four-year enhancement under section 12022.3, subdivision (a) for use of a gun in the commission of the rape of Mary (count one), and a similar four-year enhancement for use of a gun in the commission of the forcible sodomizing of Mary (count two).   He contends the evidence presented at trial was insufficient to support these two enhancements.

At the time of appellant's trial in 1994 that section stated in relevant part:  “For each violation of Section 261, ․ 286 ․ and in addition to the sentence provided, any person shall receive the following:  (a) A three-, four-, or five-year enhancement if the person uses a firearm or any other deadly weapon in the commission of the violation.”   We are here concerned with whether there was sufficient evidence that appellant used a firearm in the commission of the rape and whether there was sufficient evidence appellant used a firearm in the commission of the sodomy.

There is no dispute, on this appeal, as to what the facts are.   Appellant's defense at trial was that the events testified to by Mary and Marietta might have been committed by someone else.   This was in spite of the fact that both Mary and Marietta saw their attacker, and in fact Marietta sat in a kitchen chair and watched him for 15 minutes as he cut the parrot cage cover into strands before he used those strands to tie and blindfold Marietta.   More than an hour elapsed between the time he first entered the apartment and the time when he blindfolded Mary.   Although Mary was not watching him the entire time, she had a fairly extensive conversation with him before he pointed his gun at her.   The jury rejected appellant's contention the attacker might have been someone else.   The testimony of Mary and Marietta about what they and their attacker did in the apartment on the day of the crimes was undisputed.   The issue before us is whether those facts constitute use of a firearm in the commission of each of the two crimes.

At trial appellant contended that the gun was used by the perpetrator of the crimes only in the commission of the false imprisonment of Mary (count seven).   On appeal, he takes a different approach and argues that the evidence “was sufficient to establish that appellant used a firearm in the commission of a burglary and other related theft offenses” but “is inadequate to prove gun use during the commission of the two sex offenses.”

Language similar to that found in section 12022.3, subdivision (a) appears in other weapon use enhancement statutes pertaining to crimes other than the sex crimes listed in section 12022.3.  (See, e.g., §§ 12022, subd. (b) and 12022.5, subd. (a).)  Because of these statutes, use of a firearm “in the commission of” a crime is a concept that has already been the subject of several court decisions.   We briefly review the pertinent authorities.

In People v. Chambers (1972) 7 Cal.3d 666, 102 Cal.Rptr. 776, 498 P.2d 1024, the court held that the defendant had used a firearm in the commission of a robbery when the defendant pointed the gun at the victim, and demanded and received the victim's money.

“By employing ‘uses' instead of ‘while armed’ the Legislature requires something more than merely being armed.  [Citation.]  One who is armed with a concealed weapon may have the potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime or effect an arrest.  [Citation.]  Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies.  ‘Use’ means, among other things, ‘to carry out a purpose or action by means of,’ to ‘make instrumental to an end or process,’ and to ‘apply to advantage.’  [Citation.]  The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that ‘uses' be broadly construed.”  (People v. Chambers, supra, 7 Cal.3d at p. 672, 102 Cal.Rptr. 776, 498 P.2d 1024.)

In People v. Jackson (1980) 110 Cal.App.3d 560, 167 Cal.Rptr. 915, the victim was sleeping and awoke to find the defendant standing over her and “holding an 18–inch pair of scissors.”  (Id. at p. 564, 167 Cal.Rptr. 915.)   She struggled with him, and then attempted to “stall” him by suggesting that they go into another room.   They went into the other room, where the defendant undressed the victim and forced her to perform oral copulation.   After a brief conversation, the defendant then raped the victim.   During the acts of oral copulation and rape, the scissors were “in defendant's pants which were lying on the floor.”  (Id. at p. 568, 167 Cal.Rptr. 915.)   He was convicted of forcible oral copulation and of rape.   The jury also found that he had used a deadly weapon (the scissors) in the commission of the two crimes.   He argued on appeal that he had not “used” the scissors in the commission of the oral copulation and rape because the scissors were in the pants on the floor when the sex crimes were being perpetrated.   The appellate court rejected this argument.

“There was testimony upon which a jury could have found beyond a reasonable doubt that defendant in fact used a deadly weapon.   The victim testified that she awoke to find defendant standing over her and holding the 18–inch scissors and that she complied with defendant's demands because she was afraid for her safety and continued to be afraid.   Finally, an expert witness testified that there were smudges on the scissors and that it was not unusual not to find fingerprints on articles of evidence.”  (People v. Jackson, supra, 110 Cal.App.3d at p. 569, 167 Cal.Rptr. 915.)

Three years later in People v. Turner (1983) 145 Cal.App.3d 658, 193 Cal.Rptr. 614, the victim had opened her car door and was about to get into the car when the defendant brandished a pistol and shoved her inside the car.   He then entered the car on the passenger side and ordered her to drive to a secluded spot.   Once there, he forced her to remove her pants and to orally copulate him.   He then orally copulated her and raped her.   He then robbed her of four gold chains and forty dollars.   At his trial he was found guilty of kidnapping, two counts of oral copulation, rape and robbery.   The jury also found that he had used a gun in the commission of each of the five crimes.   On appeal, he argued that the court erred in failing to instruct the jury, on the court's own initiative, on the meaning of being “armed” with a firearm.   The court rejected this argument and pointed out that appellant “used” the gun in the commission of all five crimes, even though there had been no more brandishing of the gun after the defendant had shoved the victim into her car.

“A weapon/firearm is ‘used’ when the defendant means to display it in a menacing manner or intentionally to strike at a human being with it.   [Citations.]  Consistent with these definitions which were given to the jury, there is no possibility Turner was simply armed with a gun but did not personally use it in the commission of all the offenses of which he was convicted.

“The gun Turner used was an essential part of the crimes he committed.   He first displayed it in the kidnaping and had it available for use thereafter.   Although he placed the gun on the seat between himself and Ms. B., it was never out of his sight and always within his reach.   When Ms. B. was forced to disrobe in preparation for the sexual assaults, Turner transferred the gun to a position on the floor where it was out of her way but still accessible to him.   The victim described the gun as ‘the most frightening thing to me because I just feared the gun more than anything.’   Where the victim is sufficiently frightened by the use of a weapon such that it becomes unnecessary to continually display the weapon during the course of later crimes against that victim within a brief span of time, a use finding under section 12022.5 is proper.  [Citation.]  It would indeed be paradoxical to hold otherwise and reward with reduced punishment the criminal who effectively uses a firearm.”  (People v. Turner, supra, 145 Cal.App.3d at pp. 684–685, 193 Cal.Rptr. 614.)

Then in People v. Blevins (1984) 158 Cal.App.3d 64, 204 Cal.Rptr. 124, the defendant enticed a minor away from a group of children.   He took her into the woods, “stuck a rag in her mouth, set her on the ground, took off her clothes and displayed a knife telling her if she tried to get away he would cut her.”   (Id. at p. 67, 204 Cal.Rptr. 124.)   He kissed her breasts and face, and forced her to orally copulate him.   His convictions for committing a lewd act by force (the kissing of her breasts and face) and for oral copulation by force were enhanced for using a knife in the commission of each offense.   Although there is no indication in the opinion that the defendant displayed the knife and threatened her with it more than one time, the court relied on Turner, supra, to state that appellant “used the knife in connection with each of those counts.”  (People v. Blevins, supra, 158 Cal.App.3d at p. 68, 204 Cal.Rptr. 124.)

The victim in People v. Funtanilla (1991) 1 Cal.App.4th 326, 1 Cal.Rptr.2d 875, agreed to go to the defendant's house with the defendant and his friends, Abe and Emarco.   Once there, the defendant said his grandmother was in another room and asked the victim to come meet his grandmother.   Once they got to the other room, which was a bedroom, the defendant “pulled a gun, held it to her head and ordered her to undress or ‘something would happen’ to her.”  (Id. at p. 329, 1 Cal.Rptr.2d 875.)   The defendant ordered the victim onto the bed, raped her and then left the bedroom.   Abe then entered the room and talked to her for 10 or 15 minutes.   Meanwhile, the defendant showed his gun to Emarco in another room in the house.   Thereafter, the defendant returned to the bedroom “dressed in his undershorts” and without the gun.   He raped the victim a second time, then twice forced her to orally copulate him.   He left the bedroom.   Five minutes later, Emarco entered the bedroom and raped her.

Defendant Funtanilla was convicted of five crimes for his actions against the victim.   These were the first rape, the second rape (after the 15–minute break), the two forced oral copulations, and then one count of rape in concert (for Emarco's rape of the victim after the defendant left the bedroom the second time).   The defendant was found to have used a firearm in the commission of all five of these crimes.   On appeal, he argued that there was no evidence he used a firearm in the commission of the second rape, the two oral copulations, or the rape in concert.   These were the crimes that occurred after he had left the bedroom for about 15 minutes and had returned without his gun.

The Court of Appeal agreed.   It acknowledged the rule of Turner that “[w]here the victim is sufficiently frightened by the use of a weapon such that it becomes unnecessary to continually display the weapon during the course of later crimes against that victim within a brief span of time, a use finding ․ is proper.”  (1 Cal.App.4th at p. 333, 1 Cal.Rptr.2d 875.)   The Funtanilla court further noted that Blevins, supra, was “in accord” with Turner that “a defendant who uses a weapon while forcing a victim to submit to an initial sexual act does not need to actually display, brandish or threaten with it again before each successive criminal sexual act committed immediately after and in the same site as the initial act.”  (Funtanilla, supra, 1 Cal.App.4th at p. 333, 1 Cal.Rptr.2d 875.)

But the Funtanilla court found Turner and Blevins to be factually distinguishable because in those cases “the defendant never absented himself from the victim's presence between commission of the several offenses” and “the weapon was at all times within his reach and, inferentially, within the victim's sight.”  (Funtanilla, supra, 1 Cal.App.4th at p. 333, 1 Cal.Rptr.2d 875.)

In People v. Camacho (1993) 19 Cal.App.4th 1737, 24 Cal.Rptr.2d 286, a limousine driver opened the door of her limousine to find defendant Mortis pointing a gun at her face.   He told her to get back into the car.   She slid across the seat and attempted to exit the door on the other side, but defendant Camacho was there and pointed a gun at her.   Defendant Camacho drove the three of them to a residential area and stopped.   A third man entered the car.   Appellant Mortis raped the victim.   He then tried to force her to orally copulate him but she resisted.   Defendant Camacho raped her.   Then the third man raped her.   The third man then left the limousine.   Camacho drove the limousine some more and then stopped.   Camacho and Mortis then robbed the victim of her car phone and her beeper.   They dropped the limousine keys on the ground, walked away and were later captured.   Camacho and Mortis were each found guilty of kidnapping for robbery (count one), forcible rape in concert (count two), attempted forcible oral copulation in concert (count three), two more counts of forcible rape in concert (counts four and five), and second degree robbery (count six).   The jury found that the two defendants used a firearm in the commission of each of the six crimes.

On appeal, defendants Camacho and Mortis conceded there was sufficient evidence that they used a firearm in the commission of the kidnapping for robbery (count one).   They also conceded that they used a firearm in the commission of the robbery.   But they contended that there was insufficient evidence of firearm use in the commission of the four sex crimes.

The appellate court rejected this argument.   It applied the Turner rule, and concluded that each defendant's initial display of a gun when the victim was first abducted was sufficient.   The court distinguished Funtanilla by noting that defendants Mortis and Camacho never left the limousine during the sexual assaults, and that the victim reasonably believed the defendants had instant access to their firearms, which were also in the limousine.

In People v. Castro (1994) 27 Cal.App.4th 578, 32 Cal.Rptr.2d 529, the defendant raped the victim.   He then obtained a knife from a cohort, stabbed the victim and slashed her throat.   She subsequently died.   The defendant was convicted of rape and murder.   The jury found that the murder was committed while the defendant was engaged in the commission of a rape.  (§ 190.2, subd. (a)(17).   The jury also found that the defendant used a knife in the commission of the rape.   On appeal, the defendant argued that his section 12022.3, subdivision (a) enhancement for use of a deadly weapon in the commission of rape had to be stricken because the evidence showed that he did not use the knife until after he had finished raping the victim.

Although the appellate court did not dispute that the crime of murder occurred after the crime of rape had already taken place, it rejected the contention that the phrase “in the commission of” must be construed as requiring the weapon “use” to occur at precisely the same instant in time that the crime occurs.   The court noted that, for purposes of the felony murder rule, a murder which immediately follows a rape of the victim is deemed to be a murder in the commission of the rape so long as the rape and murder are “ ‘sufficiently close to justify an enhanced punishment.’ ”  (People v. Castro, supra, 27 Cal.App.4th at p. 585, 32 Cal.Rptr.2d 529; People v. Guzman (1988) 45 Cal.3d 915, at p. 951, 248 Cal.Rptr. 467, 755 P.2d 917.)   It concluded that the phrase “in the commission of” should be construed the same way in the weapon use enhancement statute and found the weapon use enhancement to be supported by the evidence.   The court further pointed out that if it were to accept the defendant's argument, it would have to conclude that even though the victim was murdered in the commission of a rape (§ 190.2, subd. (a)(17)), the knife was used in the commission of the murder but was not used in the commission of the rape.

Turning to the facts of the case before us, we conclude that the rule in Turner applies and that appellant used his gun in the commission of the rape and sodomy of Mary.   Appellant pointed his gun at Mary in order to facilitate his commission of the criminal acts which occurred in the apartment and which followed his display of the gun.

Appellant relies on Funtanilla and argues because he made several trips in and out of the kitchen before raping and sodomizing Mary, and because appellant had been in the apartment for more than an hour before these sex crimes occurred, he could not be found to have used a gun in the commission of the rape and sodomy unless he had once again either displayed or otherwise used the gun after reentering the kitchen immediately before the rape and sodomy.   To the extent that Funtanilla may be read as calling for such a strict temporal proximity between the display or “use” of the gun and the actual commission of the crime, we respectfully disagree with it.   In the present case, the increased risk of harm presented by appellant's use of his gun, and Mary's realization that appellant might at any time shoot her or strike her with it, did not diminish during the entire time appellant was in the apartment.   Similarly, the victim in Funtanilla was aware that even though the defendant there did not have his gun with him the second time he entered the bedroom, he could easily have gone out to the other room, retrieved it, and shot her or struck her with it.

In our view, the display of a firearm makes the threat of harm very real to the victim.   Such conduct is designed to intimidate.   Unquestionably, the victim's actual knowledge of the assailant's possession of a firearm would affect the victim's reaction to an assailant's demands.   The assailant has gained the benefit of the initial firearm display.   Putting the gun in a pocket does not realistically change the fact that the display of the firearm creates a fear of harm that affects everything that transpires between the assailant and the victim.

Funtanilla arguably concludes that when the assailant leaves the presence of the victim there must be some evidence that he is still in possession of the firearm originally displayed.

“Contrary to the People's argument, nothing in this record suggests that the elements of section 12022.3 can be satisfied by ‘carry-over’ weapon use from the initial offense.   To satisfy the statute there must be actual use during the offense at issue.   Here, once the initial rape of Sheri was completed, i.e., once all the elements of section 261 had occurred and appellant left the room, any attendant firearm use was also completed.   In order for a weapon use enhancement to attach to the later sex offenses, the People had to present evidence that appellant again used a weapon when he reentered the bedroom and committed the subsequent offenses.   In the absence of any evidence that a gun was even present, let alone used, during the subsequent offenses or the rape by Emarco, the gun use enhancements imposed therefor cannot stand.”  (People v. Funtanilla, supra, 1 Cal.App.4th at p. 333, 1 Cal.Rptr.2d 875.)

To the extent that a case might support a conclusion the assailant was not still in possession of a firearm during the subsequent offense, that case is not before us here.   Nothing in this case reasonably supports a doubt as to appellant's continuous possession of the firearm.   To the extent Funtanilla stands for the proposition that an assailant who displays a firearm, rapes a victim, leaves the victim's sight, returns and commits another assault must again display the firearm to commit a violation of section 12022.3, we do not agree.   Certainly, absent some reasonable indication that the assailant is no longer in possession of the firearm, the victim would not be speculating as to whether the assailant was in possession of it.   We decline to speculate on such possibilities in retrospect on appeal.

 Appellant also appears to contend that for a use enhancement to apply, the use of the firearm must occur simultaneously with the commission of the crime.   Neither Funtanilla nor any other case so holds.   A firearm is used when it is displayed in a threatening manner, or intentionally fired, or when a person is intentionally struck with it.  (§ 1203.06, subd. (b)(3);  see also Turner, supra, 145 Cal.App.3d at p. 684, 193 Cal.Rptr. 614.)   When a firearm is used “in the commission of” a sex crime, such as a rape, it is generally used before, and not at the actual instant of, the commission of the crime.   Otherwise a rapist would have to shoot, strike, or display the gun at the instant of penetration.   Until that point in time, no rape has yet occurred.  (See, for example, Jackson [People v. Jackson, supra, 110 Cal.App.3d 560, 167 Cal.Rptr. 915], Turner [People v. Turner, supra, 145 Cal.App.3d 658, 193 Cal.Rptr. 614] and Castro [People v. Castro, supra, 27 Cal.App.4th 578, 32 Cal.Rptr.2d 529].)   The use of the firearm (or other deadly weapon) facilitates the subsequent commission of the crime.   That is precisely what occurred in the present case.   The fact that the gun use also facilitated appellant's commission of other crimes as well does not change this conclusion.



 Appellant was found to have used a firearm in the commission of his false imprisonment of Marietta (count seven) and his robbery of Marietta (count five).   The court imposed a four-year use enhancement for each of these crimes, but ordered both of the four-year enhancements stayed, and so neither of these enhancements contributed to appellant's total determinate term of 45 years and 4 months.   The count seven and count five use enhancements were based upon section 12022.5, subdivision (a), which provides for an increased penalty for “any person who personally uses a firearm in the commission ․ of a felony.”

Appellant contends the evidence was insufficient to support the jury's finding that appellant used a firearm in the commission of his false imprisonment and robbery of Marietta.   We disagree.

Appellant appears to contend that appellant's gun use had to be directed at or observed by the victim of the crime in order for there to be a “use ․ in the commission ․ of” the crime.   He argues that because appellant pointed the gun at Mary, and not at Marietta, the use enhancement for counts seven and five is not supported by substantial evidence.   It is not disputed that Marietta was never shot by or struck with the gun, and indeed she never even saw the gun.   But appellant is incorrect in contending that appellant's use of the gun (his pointing it at Mary) had to be directed at or observed by Marietta in order for there to have been a “use” of the gun in the commission of the crimes against her.

In People v. Fierro (1991) 1 Cal.4th 173, 3 Cal.Rptr.2d 426, 821 P.2d 1302, Sam and Trudy Allessie were closing their small grocery store on a Sunday evening.   Trudy placed the day's receipts (about $1,000 in cash and about $4,000 in checks and money orders) in her purse.   They planned to deposit the receipts in the night slot of their bank and then go to dinner.   Sam opened the passenger door of his pickup truck for Trudy and then began to circle around the back of the truck to the driver's side.   After Sam was out of Trudy's sight, the defendant confronted her and demanded money.   She handed him a bundle of money, and he grabbed the entire purse and ran toward the rear of her truck and out of Trudy's view.   She heard a shot.   She ran toward the front of the store and found Sam.   Sam was on the ground and was bleeding.   By the time the police arrived at the scene, Sam was dead.

Defendant Fierro was convicted of first degree murder and of two counts of robbery.   He was found to have used a firearm in the commission of each offense, including the robbery of Trudy.   On appeal he contended there was no evidence to support the section 12022.5, subdivision (a) finding of firearm use in the robbery of Trudy Allessie because “[i]t was undisputed that Ms. Allessie did not see defendant display a gun when he robbed her.”  (People v. Fierro, supra, 1 Cal.4th at p. 225, 3 Cal.Rptr.2d 426, 821 P.2d 1302.)   Although Ms. Allessie was not shot by or struck with the gun, and never saw it, the court found that appellant's use of the gun on Sam was sufficient to constitute use of the firearm in the commission of the robbery of Trudy.   The court pointed out that a robbery was not complete until the robber has won his way to a place of temporary safety, and that “the jury could reasonably have inferred that defendant used the gun against the murder victim to facilitate his escape or to prevent his identification as the robber of Trudy Allessie.”  (1 Cal.4th at p. 227, 3 Cal.Rptr.2d 426, 821 P.2d 1302.)

In the present case, appellant's use of his gun enabled him to obtain compliance from Mary with his demand that she lie on the kitchen floor so he could tie her up.   This in turn enabled him to neutralize the only possible source of third party resistance (Mary) to his subsequent false imprisonment and robbing of Marietta.   The jury also could reasonably have inferred that appellant's pointing of his gun at Mary was the impetus for Mary's subsequent warning to Marietta to “do whatever he says to do, because he has a gun,” and that this in turn facilitated Marietta's own compliance with appellant's demands.

Appellant relies on People v. James (1989) 208 Cal.App.3d 1155, 256 Cal.Rptr. 661.   This case does not help him for at least three reasons.

First, in James there was no “use” of the weapon at all against anyone.   One victim testified that the defendant “never threatened her” with a knife.   (208 Cal.App.3d at p. 1162, fn. 2, 256 Cal.Rptr. 661.)   Nor did she testify that the defendant threatened anyone else with a knife.   The other victim never offered any testimony at all about a knife.

Second, James does not hold that when a weapon is “used” in the commission of a crime by displaying the weapon in a threatening manner, the victim of the crime must always and without exception be the person to whom the weapon was displayed.  James does not even address that issue.   The portion of the opinion on which appellant relies appears to be a brief discussion of what is required when the victim of the crime is the person against whom the weapon is “held ․ or exposed ․ in a menacing fashion accompanied by words threatening violent use.”  (208 Cal.App.3d at p. 1163, 256 Cal.Rptr. 661.)   The court noted that in such a situation “the victim must be made aware of the weapon's presence.”  (Ibid.)  The James court then cited People v. Jacobs (1987) 193 Cal.App.3d 375, 238 Cal.Rptr. 278, a case in which “use” was found when the defendant reached into his pocket and cocked a gun, even though the victim never actually saw the gun.

Third, even if James could properly be read as always requiring the “use” of the weapon to be directed at the victim of the crime (and we do not so read it), it would have been superseded in this respect by Fierro.

The use findings on counts seven and five are supported by substantial evidence.

III. & IV. **



In 1993 when appellant was sentenced, Government Code section 13967, subdivision (a) provided in part that “[u]pon a person being convicted of any crime in the State of California, ․ if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than two hundred dollars ($200), subject to the defendant's ability to pay, and not more than ten thousand dollars ($10,000).”   The words “not less than two hundred dollars ($200), subject to the defendant's ability to pay” were added to the statute in 1992 and replaced the words “not less than one hundred dollars ($100).”   We have reviewed related statutes and the legislative history of section 13967, and have concluded:

 1) Where the fine exceeds the statutory minimum, Government Code section 13967, subdivision (a) as amended in 1992, requires a finding that the defendant has the ability to pay the fine before it can be imposed.

 2) A sentencing court is not under any constitutional or statutory duty to conduct a formal evidentiary hearing on ability to pay or any other aspect of a restitution fine unless the fine is made a condition of probation.   Due process is afforded if a defendant is given notice of the amount of the fine and a reasonable opportunity to respond at the sentencing hearing.  (Cf. People v. Wyman (1985) 166 Cal.App.3d 810, 815–816, 212 Cal.Rptr. 668.)

 3) The ability to pay finding need not be express;  it may be implied.  (People v. Frye (1994) 21 Cal.App.4th 1483, 1485–1486, 27 Cal.Rptr.2d 52.)

 4) When a defendant challenges a restitution order under Government Code section 13967 on the ability to pay issue, procedural issues are waived if not raised in the trial court, but claims that the court exceeded its statutory authority may be raised for the first time on appeal.   (Civ.Code, § 3527 [‘The law helps the vigilant, before those who sleep on their rights.’];   see People v. Blankenship (1989) 213 Cal.App.3d 992, 997–1000, 262 Cal.Rptr. 141.)

 5) If there is no evidence or information before the court supporting a finding of ability to pay, the court has exceeded its statutory power in imposing the fine.   Thus, we hold that appellant did not waive his right to challenge the restitution order on the grounds that it is unsupported by evidence of an ability to pay.

 6) Ability to pay a restitution fine need not be immediate.   Factors such as the defendant's age, physical and mental condition, length of prison sentence, education, work history, family support liabilities and accumulated assets are all relevant to the defendant's ability to pay a restitution fine.   (See People v. Staley (1992) 10 Cal.App.4th 782, 785–786, 12 Cal.Rptr.2d 816.)

 We reject appellant's argument that an express finding or on-the-record consideration of a defendant's ability to pay is essential.   The statute does not require an express finding (People v. Frye, supra, 21 Cal.App.4th 1483, 1485–1486, 27 Cal.Rptr.2d 52) and, in any event, appellant has waived any objection to the adequacy of the procedure employed in assessing the restitution fine by failing to object below.

 The record in the present case does not support an implied determination that appellant had the ability to pay a $10,000 restitution fine.   That amount is substantial, and greatly exceeds the statutory minimum of $200.   The probation report stated that appellant “lists no significant assets.”   Nor does it appear reasonably probable appellant would be able to pay a fine of that size in the future.   In light of low prison wage rates (see Cal.Code Regs., tit. 15, § 3040, subd. (a);  Dept. of Corrections, Operations Manual, § 51120.1, p. 51120–2), it is apparent the possibility that appellant might obtain a work assignment while imprisoned does not alone support an ability to pay more than a minimal restitution fine.

For the reasons explained in People v. Walker (1991) 54 Cal.3d 1013, 1027–1029, 1 Cal.Rptr.2d 902, 819 P.2d 861, we will neither remand for further proceedings on the issue of appellant's ability to pay, nor strike the restitution fine entirely.   Rather, we shall reduce the restitution fine to the current statutory minimum of $200.


For the reasons stated herein the violation of section 12022.8, the great bodily injury enhancement as to count two, is reversed.   The restitution fine is reduced to $200.   In all other respects the judgment is affirmed.   The trial court is directed to prepare an amended abstract of judgment.


FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

ARDAIZ, Associate Justice.

THAXTER and BUCKLEY, JJ., concur.

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