THE PEOPLE v. RICHARD ESCOBEDO (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Defendant and appellant Richard Escobedo was convicted of burglary, robbery, assault with a firearm and possession of a firearm by a felon.   The jury found true the personal gun use allegations.   On appeal, defendant contends there was not substantial evidence that the gun he used in these crimes was a real gun and not a toy gun.

“ ‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citations.]  On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  [Citation.]’ ”  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206;  accord, People v. Staten (2000) 24 Cal.4th 434, 460 [“critical inquiry” is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt].)

We must confirm that the evidence supporting the verdict is “ ‘reasonable, credible, and of solid value,’ ” but refrain from reweighing the evidence and substituting our evaluation of the credibility of witnesses for that of the trier of fact.  (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)   This same standard applies whether the evidence is direct or circumstantial.  (People v. Prince (2007) 40 Cal.4th 1179, 1251.)   In this case, we find there is substantial evidence that defendant used a real handgun.

There were three victims of defendant's crimes.   Cristian Coronado was a plainclothes asset protection specialist at Target, whose job was to detect and apprehend shoplifters.   Mr. Coronado was the supervisor of Armando Andrade and Gustavo Lamadrid, the other two victims, who were uniformed security officers for Target.   Defendant and his co-defendant, who is not a party to this appeal, stole merchandise from Target.   When Mr. Coronado identified himself as Target security and tried to apprehend them outside the store, defendant took out a gun and pointed it close to Mr. Coronado's face.   Mr. Coronado immediately put up his arms and said, “Just take it.   I'm going back inside.”   Defendant said something to the effect of “I don't think so.   Get the f––– back.”   Mr. Andrade and Mr. Lamadrid had followed Mr. Coronado outside the store, and defendant pointed the gun at them as well, telling them to “back the f––– up.”

The gun appeared to Mr. Coronado to be a metallic black revolver with a cylinder in the middle, not a gun into which a clip is inserted.   Mr. Coronado had taken a college firearms course and had seen an actual revolver in the class.   Defendant pointed the gun only six inches from Mr. Coronado's face, and it looked no different than the revolver he had seen in the firearms course.   The gun appeared to be loaded.   Mr. Coronado could see bullets in the chambers from the angle at which defendant pointed the gun.   From where he stood on the sidewalk outside the store, Mr. Lamadrid also saw defendant holding a gun in his right hand and waving it around.   First, he saw defendant point the gun at Mr. Coronado.   After Mr. Lamadrid and Mr. Andrade came outside the store, defendant pointed the gun at them.   Mr. Lamadrid was only three or four feet from defendant when defendant pointed the gun at him.   It looked to Mr. Lamadrid like a small silver revolver, bright and shiny, with a bulging chamber and fairly small barrel, and it look capable of shooting.   Like Mr. Coronado, Mr. Lamadrid had seen and held a real revolver.   Mr. Lamadrid was close enough to see that the gun was not a toy or replica.

When Mr. Andrade walked outside the store to help with the apprehension, he heard Mr. Coronado identify himself as Target security to defendant, who then sprinted toward Mr. Coronado and swung his right arm toward Mr. Coronado.   At first, Mr. Andrade thought defendant was going to sock Mr. Coronado, so Mr. Andrade walked toward defendant to restrain him.   Mr. Andrade saw Mr. Coronado throw up his hands and back away, and it was then Mr. Andrade saw defendant pointing a gun at Mr. Coronado.   Defendant then swung his arm toward Mr. Andrade and pointed the gun at his face, telling him “Get the f––– back.”   The gun was six inches from Mr. Andrade's face and looked like a black .22–millimeter revolver.   He could see the revolver part of the gun, the chambers, and little copperhead rounds inside the chambers.   The gun did not appear shiny when pointed at Mr. Andrade but had a flat black color.   The gun appeared to be loaded and capable of firing.

Defendant then told his co-defendant, “Let's go.   Run[,]” and they both sprinted to the parking lot.

Mark Harvey, a Baldwin Park Police Department detective who is a firearms expert, testified that a revolver is a firearm with a round cylinder that holds the bullets, and bullets would be visible in the cylinder if the gun is pointed at someone.   He explained an older black revolver can appear silver when the metal is worn.

The gun defendant used was not recovered.   Defendant offered the testimony of a childhood friend with whom defendant had been staying at the time of these crimes.   Defendant's friend has children with toy guns and found a toy gun in defendant's suitcase.   Based on this circumstantial evidence, conceivably, the jury might have had a reasonable doubt whether the gun defendant used was a toy gun he had gotten at the home of his friend.   However, the testimony of the prosecution witnesses was solid, substantial evidence that the gun was a real handgun within the meaning of Penal Code sections 12022.53 and 12022.5, subdivision (a).   We cannot reweigh the evidence or substitute our judgment for that of the jury on credibility questions.  (See People v. Aranda (1965) 63 Cal.2d 518, 533 [“Testimony to the effect that the defendant was flourishing the pistol or pointing it at the victim and was using threatening words or conduct indicating that he intended to fire it if his demands were not met would be evidence from which the inference [that the gun was not a toy] could be drawn];  People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436 [jury not required to give defendant the benefit of victims inability to testify conclusively that gun used in robbery was real;  victim testified pistol looked like a firearm, defendant displayed it menacingly and demanded her purse;  the jury was entitled to take defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand (id. at p. 1437) ].)

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WE CONCUR:

BIGELOW, P. J. RUBIN, J.