Filed 9/17/14 P. v. White CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. CORY JAMES WHITE, Defendant and Appellant. G048783 (Super. Ct. No. 11NF3599)

O P I N I O N

Appeal from a judgment of the Supe rior Court of Orange County, John Conley, Judge. Affirmed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, Arlene Sevidal and A. Natasha Cortina, Deputy Attorneys Ge neral, for Plaintiff and Respondent.

* * *2 A jury convicted defendant Cory Ja mes White of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b); all further undesignated statutory references are to this code) and found he personally used a firearm (§ 12022.53, subd. (b)). The court found defendant had suffered a prior serious felony conviction and two prior strike
convictions. The court also found true two prior prison term enhancements. Defendant was sentenced to prison for 25 years to life plus 15 years. Defendant’s appeal raises two issues . First, he contends insufficient evidence supports the firearm enhancement and second, the court abused its discretion in declining to strike one of his prior convictio ns. We disagree and affirm the judgment.

FACTS

The charged robbery took place at a bank in La Habra. Two persons entered the bank. The manager, Sergio Bo nilla, saw defendant approach, wearing a mask, with a gun in his hand. Bonilla testified he could not tell what kind of gun it was, but it appeared to be a semi automatic. The second robber jumped over the counter and demanded money. Defendant remained at the counter and told everyone not to move, to cooperate, to be quiet, and not to press the alarm. The s econd robber approached two tellers and took money from them . One of the tellers also st ated she believed the gun to
be real but admitted to a lack of e xperience with guns and had never seen a semiautomatic up close. The tellers testif ied they were scared for their lives. After obtaining the money, the two me n left the bank. Defendant was later identified through DNA evidence on a recovered ski mask.3 DISCUSSION

1. Substantial evidence supp orts the gun enhancement. Although all three bank employees who testified they believed the gun used by defendant was “real,” rather than a replica or a toy, and two tellers testified to having been in fear of their lives, none had sufficien t experience with guns to state unequivocally
defendant held an authentic firearm. Based on this fact, defendant contends the prosecution failed to prove that a firearm was used in the robbery. Section 12022.53, subdivision (b) imposes a consecutive 10 year term on persons who commit specified cr imes, including robbery, if they “personally use[] a firearm.” Section 12001 provides the definition of “‘firearm’” of section 16520 is to be used in determining whether the enhancement applies. Section 16520, subdivision (a) in turn defines “‘firearm’” as “a device, designe d to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosi on or other form of
combustion.” Defendant thus contends th e prosecution has the burden to produce substantial evidence the object he used during the robbery fits this definition. But he acknowledges that cases have held circumstan tial evidence is suffici ent to satisfy this
burden. He discusses People v. Monjaras (2008) 164 Cal.App.4th 1432 ( Monjaras ) and People v. Law (2011) 195 Cal.App.4th 976 ( Law ).
In Monjaras defendant, during a robbery, “dis played the handle of a black pistol tucked in his waistband.” ( Monjaras, supra, 164 Cal.App.4th at p. 1434.) The court, citing a number of earlier cases, affirmed the imposition of the 10-year enhancement under section 12022.53, subdivisi on (b), although “the victim could not say whether the pistol in defendant’s waistband was a gun or a toy.” ( Id. at p. 1435.) The court stated, “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 used4 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.” ( Ibid. ) The present case demonstrates Jus tice Scotland was overly optimistic in hoping to plunge a silver spike through the heart of th e proposition a defendant could avoid the consequences of his act as long as his victim wa s unsophisticated about guns. Law, supra, 195 Cal.App.4th 976 is to the same effect. Citing Monjaras, the court characterized the argum ent with which we here deal as “an oft-raised attack on the sufficiency of the evidence when the prosecution re lied on circumstan tial evidence to prove that a defendant used a firear m to commit a criminal offense.” ( Id. at p. 978.) There too, defendant contended Monjaras was erroneously decided but the court reaffirmed “‘“if it looks like a duck, and quacks like a duck, it’s a duck.”’” ( Id . at p. 979.)
Defendant contrasts the facts in Law with the facts of the case. They are different, but we can hard ly say the same about Monjaras . We reject defendant’s
contention for the reasons stated in the latter case. When cr iminals use what looks like a gun for the purpose of intimidating or scaring their victims into believing the object is a real gun, there is circumstantial evidence the gun is real.

2. The court did not abuse its discretion in declining to strike one of defendant’s prior
strikes.
Defendant’s second contention is that the trial court abused its discretion
when it failed to strike one of his prior felony convicti ons for bank robbery. Under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531, we review this ruling for abuse of discretion. ( Id. at pp. 529-531.) The court gave careful consideration to the issue and recognized the test fo r striking priors is to determ ine whether a defendant “falls outside the spirit of the Three Strikes law.” The court then reviewed defendant’s criminal history, including “ten years in custody in CYA, . . . [combined with the fact] that5 defendant has spent a small minority of his ad ult life out of custody.” The court also noted that, while in the county jail, defendant ha d 22 major violations.
The court did not abuse its discre tion in concluding defendant did not “fall[] outside the spirit of the Three Strike s law.” Although the record is not clear exactly how long defendant had been out of pr ison, considering the terms imposed for his prior crimes and the court’s true finding on the prior prison term allegations, the period cannot have been very long. And the probation report discloses that when defendant was interviewed by representatives of the FBI, appa rently in connection with other unrelated bank robberies, defendant “identified the inve stigators as ‘cops’ and identified himself as a ‘robber.’ He said he will ‘always be a robb er,’ and further stated, ‘It is a cops and
robber world.’” The “Three Strike” law is de signed to protect society from this kind of
career criminal.

DISPOSTION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.