1 Filed 2/6/14 P. v. Diaz CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. DON RODRIGO DIAZ, Defendant and Appellant. A137397
(Solano County Super. Ct. No. FCR290514)

I.
INTRODUCTION Appellant Don Rodrigo Diaz appeals fro m his convictions for second degree robbery with a firearm (Pen. Code, 1 §§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), and for being a felon in possession of a firearm (§ 12021, subd. (a)(1)) follo wing a jury trial. On appeal, he challenges th e sufficiency of the evidence showing that he possessed a
firearm at the time he committe d the second degree robbery, 2 or that he was otherwise in possession of a firearm within the m eaning of the relevant statutes.
We conclude there was substantial evid ence supporting the jury’s findings, and therefore, affirm the judgment.

1 All further statutory references ar e to the Penal Code, unless otherwise indicated.

2 Appellant does not contest the robbe ry conviction; only the firearm use enhancement and the separate possession of a firearm count.2 II.
PROCEDURAL BACKGROUND
An amended information wa s filed on April 4, 2012, 3 by the Solano County District Attorney’s Office charging appella nt with one count of second degree robbery (§ 211) (Count One), and one count of po ssession of a firearm by a felon (§ 12021, subd. (a)(1)) (Count Two). Sentencing enhancements we re alleged as well in the
amended information. As relevant to this appeal, two such enhancements were that appellant personally used a firearm in the commission of Count One, within the meaning of sections 12022.5, subdivi sion (a)(1) and 12022.53, subdivi sion (b). Appellant pleaded not guilty to the charges and denied the sentencing enhan cements allegations at his arraignment. On August 20 the prosecution filed a moti on to amend the information further by changing the sentencing enhancements relating to appellant’s prior cr iminal record. The motion was granted without objection at the commencement of the jury trial on August 22. A jury was empanelled on Augus t 22 and the attorneys made their respective opening statements before the trial adjourned for the day. Testimony commenced and was completed th e following day on August 23. The jury commenced its deliberati ons on August 24, and returned its verdict on the morning of August 27. The jury convicted appellant of both counts and foun d true the sentencing enhancement that he personally used a fir earm in the commission of the second degree robbery. The court then conducted a bifu rcated trial and found true the sentencing enhancements alleging appe llant’s prior convictions. Prior to sentencing, appellant made a mo tion to strike the prior convictions for sentencing purposes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497. The motion was heard an d denied on December 3. The case was then set for judgment and sentencing on December 6.

3 All dates are in the 2012 calenda r year, unless otherwise indicated.3 At sentencing the trial court imposed the midterm of 2 years in state prison for the second degree robbery (Count 1 ), and a consecutive term of 10 years for the personal use of a firearm enhancement, for a total aggregat e state prison term of 12 years. A 2-year state prison term was also imposed for posse ssion of a firearm by a felon (Count 2), but
that term was ordered to be served conc urrently with the aforementioned 12-year sentence. Total custody credit of 361 da ys was awarded, and fines and penalties imposed. Notice of appeal was filed on December 10.
III.
EVIDENCE ADDUCED AT TRIAL RELATING TO THE FIREARM

POSSESSION CHARGE (COUNT 2) AND THE PE RSONAL USE ENHANCEMENT Gustavo Nava testified that he was working as a lube technician at the 7 Flags Car Wash and Lube Express (7 Flags) in Fairfi eld on January 26, where he had worked for about five years. On that day, appellant, who formerly worked at 7 Flags, approached Nava. Appellant had not worked at 7 Flags for the preceding two years. The two started a conversation that was cordial, and appellant a ppeared to be calm and quiet. After a few minutes appellant put on some white latex gl oves, which Nava thought was odd. Their conversation ended when the manager, Matthew Bodiford, asked Nava to leave the lube shop office where he and appellant had been conversing.
Bodiford testified that he had worked at 7 Flags for about ten ye ars as the assistant manager, and during that time had work ed with appellant for approximately two years. On January 26, Bodiford was in the office “counting the drawers” and getting ready to close for the day when appellant entered the o ffice. Bodiford thought it was odd since he had not seen appellant si nce he left 7 Flags. Appellant asked Bodiford if the security camera in the office was working, which made Bodiford nervous. Appellant looked ar ound the office and commented that he “just came to get what is mine.” They were in terrupted when the manager opened the door briefly, and then clos ed it and walked away.4 Just before the manager opened the doo r, and when appellant was saying he was there to get what was his, he pulled up his sh irt and showed Bodiford the handle of a gun stuck in his waistband, and also said he wa s not there to hurt Bodiford or his family.
Bodiford was “nervous as hell” and “afraid ” because he did not know if appellant
intended “hit me or shoot me in the back.” Appellant asked Bodiford for the keys to the cash drawers, which were outside in the lube shop. As Bodiford then went out to the lube area to the cash drawers, appellant followed him. Bodiford brought the drawer s back into the shop and placed them on a desk. Appellant asked Bodiford to bag up the money. Bodiford asked appellant if he was serious, and appellant responde d “[y]es.” When Bodiford did not comply, appellant grabbed the paper money from the drawers. Bodiford saw that appellant was wearing white latex gloves on his hands. The gun Bodiford saw was silver and had a black grip. It appeared to be real. Appellant was standing about a foot and a ha lf from Bodiford when he showed him the gun. Bodiford looked at the gun for about 10 seconds. Appellant then ordered him to go
into the back room. Bodifo rd complied because he was scared, testifying that “[w]hen you see somebody has a gun, you do what they say.” He th en heard a door shut. He
waited an additional 15 or 20 seconds and th en opened the back room door. Appellant

was gone. There was nothing about the appearance of the gun that suggested it was a fake. Bodiford had seen guns on television and on the street, and the one in appellant’s waistband appeared to be real. On cross-exam ination, Bodiford explained that his father had worked at a prison so he was familiar with guns. Bodiford also owned an air soft gun with a clear casing, but he had also seen air so ft guns that were not clear. He stated that he had fired a .22-caliber handgun, and did not know the difference between a revolver and a semi-automatic handgun.
Bodiford was interviewed after the ro bbery by Fairfield Police Officer Joseph Griego. The officer asked Bodiford to desc ribe the weapon appellant had on his person that day. He said it was silver with black grips. Bodiford di d not “sound too familiar5 with guns.” When asked if the gun was real, Bodiford said he did not know, but that “it looked real enough.” The defense case began with appellant calli ng Kurt Morales as a witness. Morales testified that he had known ap pellant since they were children. He saw appellant a few days prior to learning about the robbery wh en appellant stopped by where Morales was working. Morales had a CO2 cartridge pelle t gun that was not working properly. The gun had to be loaded one pellet at a time. It was silver with a black plastic grip and “look[ed] like a real” semi-automatic ha ndgun. The hammer was jammed and “you could not pull the trigger.” Morales also testified that the gun was pl astic and would not app ear to be real “in broad daylight. Maybe if the lights were dim . . . .” If a person glanced at it quickly, it would appear real. It did not look real to Morales because there was a screw on the bottom of the handle “where you put the CO2.” Morales testified that “[i]f you looked at the gun, you would definitely see [a] knob on the bottom of the handle.” The knob protruded about half an inch to an inch and could not be removed. Morales had purchased the pellet gun about 12 years earlier. He used to carry it in his briefcase because he thought it was “cool.” After it broke, he still kept it. Morales had it at his workplace for about a year before he gave it to appellant. He kept it at his workplace because he originally planned to set up a target range with another employee, but the gun broke before they could do it. Morales has not seen appellant since the afternoon when he gave him the pellet gun. The prosecution recal led Bodiford, who testified that he was only able to see the handle of the gun in the waistb and of appellant’s pants when he pulled up his shirt. There was nothing protruding from the end of the ha ndle. Bodiford could only see the hammer and butt of the gun.
IV.
DISCUSSION To clarify the issue we must decide in th is appeal, we note initially that appellant has not challenged the sufficiency of the evid ence to support his conviction for second6 degree robbery. The only issue is whether the firearm enhancements under sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b) alleged and found true by the jury, and his separate conviction for being a felon in possession of a firearm under section 12021, subdivision (a)(1) (Count 2), we re supported by subs tantial evidence. A “firearm” is defined, for purposes of the two challenged enhancements and Count 2, as “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosio n or other form of combustion.” (§ 16520, subd. (a).) The parties agree that if appellant displayed a pellet gun and not a “real” firearm, there was no substantial evidence to support the true findings on the two firearm enhancements or Count 2. ( People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 ( Monjaras ).) Thus, the narrow question becomes wh ether there was substantial evidence to support the findings that appellant used a firearm in the commi ssion of the robbery, and not a pellet gun. In determining whether a conviction or factual findings by a jury were supported by substantial evidence “[w]e review claims of insuffici ent evidence by examining the entire record in the light most favorable to the judgment below. [Citation.] We review to
determine if substantial eviden ce exists for a reasonable trie r of fact to find the counts against the [defendant] true beyond a reasona ble doubt. [Citation.] Substantial evidence must be reasonable, credible, and of solid value. [Citation.] We also presume the existence of every fact the [trier of fact] could reasonably deduce from the evidence in support of its judgment. [Citation.]” (In re Frank S . (2006) 141 Cal.Ap p.4th 1192, 1196; People v. Young (2005) 34 Cal.4th 1149, 1175.) Our inquiry is directed to whether any
rational trier of fact could have found the elements of the enhancement beyond a
reasonable doubt. We do not resolve credibility issues or evidentiary conflicts, because that is the exclusive province of the trier of fact. ( People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Reve rsal is not warranted unle ss it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence’ ” to support the true finding. ( People v. Bolin (1998) 18 Cal.4th 297, 331.)7 We conclude that Bodiford’s testimony al one is sufficient to provide a evidentiary basis for the jury’s finding s. (Evid. Code, § 411; People v. Lewis (2001) 25 Cal.4th 610, 646.) Moreover, there are reasonable infere nces which could be drawn from Morales’s testimony which bolsters Bodiford’s conclusi on that the weapon appellant showed him during the robbery was real. The gun displayed to Bodi ford by appellant was silver and had a black grip, and appeared to be a real gun. Appellant was st anding about a foot and a half from Bodiford when he showed him the gun. There was not hing about the appearance of the gun that suggested it was a fake. Bodiford had seen guns on television on the street, and the one in appellant’s waistband appeared to be real. Bodiford further explained that his fa ther had worked at a prison so he was familiar with guns. He also owned an air soft gun with a clear casing, but he had seen air soft guns that were not clear. He also had fired a .22-caliber handgun. Morales testified that his pellet gun was pl astic and it would not appear to be real “in broad daylight. Maybe if the lights were dim . . . .” The robbery took place in the office of 7 Flags, and there is no indication th at the lights were dim or other than what one would expect in such a setting. Morales also testified that his pellet gun mi ght appear real if someone glanced at it very quickly. Bodiford did not simply “glanc e” at the weapon, but looked at it for about
10 seconds. As important as any other fact was Bodi ford’s testimony that there was nothing protruding from the end of the handle of th e weapon appellant was carrying. Morales testified that his pellet gun had a screw on the bottom of the handle “where you put the CO2.” He explained further that if a person saw the handle of the pellet gun, they would definitely see the knob on the bottom of the handle, which protruded about half an inch to
an inch. While there was testimony from which the jury could have believed that appellant was carrying Morales’s pellet gun, or that Bodi ford was not sufficiently experienced with
firearms to know the differen ce, there also was substantial, believable evidence as noted8 above from which the jury could conclude th at the weapon was a “real” firearm. ( People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In the Third District Court of Appeal case of Mojaras , supra , 164 Cal.App.4th 1432, the issue was whether th e evidence was sufficient to support the finding that the defendant personally used a firearm during a robbery within the meaning of section 12022.53, subdivision (b), one of the very same enhancements charged against appellant here. In rejecting defendant’s challe nge to the sufficien cy of the evidence , our colleagues
introduced the issue while explaining why it was publishi ng its decision: “On appeal, defendant raises a contention that we thought had been put to rest but has resurfaced in a number of appeals before this court. Pointin g out that the victim could not say whether the pistol in defendant’s waistband was a gun or a toy, and making the dubious assertion that he ‘did not undertake any behavior suggesting that he would fire the weapon,’ defendant argues the ‘personal use allegati on under section 12022.53, subdivision (b), was sustained merely on conjecture about th e nature of the alleged weapon.’ Stated another way, he claims ‘there was no evidence of a gun presented to the jury to support an inference the weapon was real’ and, th us, the firearm use enhancement must be reversed. We disagree. “Defendant was not engaged in a childho od game of cops and robbers; the robbery was real, and the evidence suppor ts a reasonable inference that the pistol he used was a real firearm, not a toy. Ou r 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.” ( Monjaras , supra , 164 Cal.App.4th at p. 1435.) 4

4 Despite the intention of the Monjaras court to discourage criminal defendants from continuously raising this “moribund” su fficiency of evidence claim, a mere three years later, the Third District found it ne cessary to reaffirm the rationale in Monjaras and additionally extend it to findings of firearm usage in assaults (§ 245, subd. (a)(2)), and personal use of firearms within the meani ng of section 12022.5, subdivision (a), the second enhancement found true in this case. (See People v. Law (2011) 195 Cal.App.4th 976, 979.)9 If anything, the evidence in Monjaras supporting the jury’s true finding that the robbery was committed while the defendant was personally armed with a firearm was even less weighty than in this case, altho ugh the circumstances of the robbery were remarkably similar: “Here, defendant demanded of the fema le victim, ‘Bitch, give me your purse,’ then pulled up his shirt and disp layed the handle of a black pistol tucked in his waistband. The victim, w ho had seen guns before but ha d never handled one, testified she immediately saw that the pistol looked like a gun, and it made her scared. She ‘assumed’ the pistol was ‘real’ and handed over her pocketbook . When asked by
defendant’s trial attorn ey what the pistol was made of, the victim said: ‘Probably metal
because—I don’t know. Wasn’t wood, wasn’t plastic. I don’ t know if it was plastic or metal. . . . He don’t show it to me. He ju st do ‘ “this” to me [pulled up his shirt and displayed the pistol].’ The victim then co nceded that she could not say for certain whether it was ‘a toy or real or not.’ ” ( Monjaras , supra , 164 Cal.App.4th at p. 1436.) In affirming the defendant’s convicti on and the jury’s concomitant “arming” findings, the Monjaras court concluded that the victim’s testimony was sufficient circumstantial evidence to support both. ( Monjaras , supra , 164 Cal.App.4th at p. 1436.) The court noted, too, that the defendant’s own words and conduct in the course of the offense itself supports the fact finder’s de termination that the weapon was “real.” ( Id. at pp. 1436-1437.) In this regard, reasonable inferences c ould be drawn from what appellant said to support the arming findings. When appellant displayed his partially hidden weapon to Bodiford, he assured Bodiford that he was not th ere to hurt him, but to get what was his. This utterance provides the same corroboration found noteworthy in Monjaras. In light of the foregoing, we have no hesitation in concluding that the firearm enhancements under sections 12022.5, su bdivision (a)(1) and 12022.53, subdivision (b) alleged and found true by the jury, and appella nt’s separate conviction for being a felon in possession of a firearm under section 12 021, subdivision (a)(1) (Count 2), were supported by substantial evidence.10 IV.
DISPOSITION The judgment and sentence imposed below are affirmed.11 _ ____________ ____________ RUVOLO, P. J.

We concur:

_____________ ____________ RIVERA, J.

_____________ ____________ HUMES, J.