Filed 12/11/13 P. v. Argallon CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. FREDDIE JAMES ARGALLON, Defendant and Appellant. D062524

(Super. Ct. No. SCD232456)

APPEAL from a judgment of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed as modified with directions.
Raymond M. DiGuiseppe, under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, Kimberley A. Donohue and Charles C. Ragland, Deputy Attorneys Ge neral, for Plaintiff and Respondent. Freddie James Argallon appeals from a j udgment convicting him of several counts of robbery (with true findings that he person ally used a firearm), burglary, and possession2 of a firearm by a felon. He argues there is in sufficient evidence to support a finding that he used a real firearm to establish the pers onal gun use enhancements. We reject this contention. Defendant also contends he was not awarded the correct amount of custody credits, and the abstract of judgment incorr ectly describes one of his convictions. The Attorney General concedes these errors. We modify the judgment to correct the custody credits, and direct the superior court to correct the abst ract of judgment.
FACTUAL AND PROCEDUR AL BACKGROUND Defendant and an accomplice (Angel Zavala) were charged with robberies at three different locations (a taco shop and two donut shops), and a burglary at a 7-11 store. The jury acquitted defendant of th e taco shop robbery, and fo und him guilty of the other charges. Because of the acquittal, we c onfine our summation of the facts to the two donut shop robberies and the 7-11 burglary. Christy's Donut Shop R obbery on January 28 At about 12:23 a.m. on January 28, 20 11, Kien Ngo and her husband Chi Tang were robbed by two men at gunp oint at their donut shop (Christy's Donu t Shop). Before the robbery, a man had called the shop and as ked what time it closed. About 30 minutes later, the two robbers, who were wearing sk i masks, entered the shop and jumped over the counter. The first man who jumped over the counte r grabbed Ngo, dragged her to the cash register, instructed her to open the register, and then grabbe d the money from the register. The man was pointing a gun at Ngo, which Ngo described as "maybe" being black.3 Meanwhile, the second robber went to the back of the sh op where Tang was working. Because the man had a gun in his hand, Tang "knew imme diately that [they] were being robbed." The man grabbed Tang by the shirt, pointed his gun at Tang's chest and head, and ordered Tang to give him his wallet. The robber held the gun "[v]ery close" to Tang's head, ab out one foot away. Tang describe d the gun as silver. After Tang gave the man his wallet, the two robbers fl ed out the back door of the store. 7-11 Burglary on January 28 After the robbers left and the police arri ved at Christy's Donut Shop, Tang had his son notify the credit card companie s that his cards were stolen from his wallet. At about 12:40 a.m. that same night (January 28), one of the credit cards was used at a 7-11 store located about five and one-h alf miles from Christy's Donu t Shop. When a detective viewed a surveillance video from the 7-11 stor e, he observed a man (later identified as defendant) enter the store a nd purchase beer. Police inve stigation revealed that the purchase was made with Tang's credit card, and defendant's dr iver's license was "swiped" through the cash register by the store clerk. The video also depicted Zavala entering the 7-11 store a few minutes after defendant's arrival. Yum Yum Donut Shop Robbery on February 8 At about 2:17 a.m. on February 8, 2 011, Norma and Norber to Quezada were working at Yum Yum Donuts when they were robbed at gunpoint by two men. Before the robbery, a male had called the shop and as ked if it was open. Shortly thereafter, the two robbers ran into the shop and jumped over the counter.4 The first man who jumped over the coun ter grabbed Norma by her arm, pulled her to the cash register, told her to open the register, and took all the money from the register and the tip jar. He had a gun which he held against her tors o and which felt cold through her t-shirt. The man was wearing a dark ca p or hat and a bandana covering his mouth. While Norma was trying to open the cash register, the robber bent down and removed his bandana because a car was passing by outside. At this point Norma saw his face, and at trial she identified the robber as Zavala. Meanwhile, the second robber went to th e back of the shop where Norberto was working. The robber pushed a gun into Norb erto's back and dema nded to know where the money was located. Norberto gave the robber all the money that was in a safe. There was about $5,000 in the safe , including numerous $100 and $2 bills. After stealing the money, the robbers fled ou t the back of the shop. At trial, Norberto and Norma iden tified defendant as the second robber. 1 According to Norberto, the s econd robber was wearing a ski mask, but Norberto was able
to see his face because the mask was lifted off his face when he first entered the shop. 2

1 Norma also identified Zavala and defendan t at the preliminary hearing. When the police conducted a photo lineup which included Zavala's (but apparently not defendant's) photo, Norma could not make an identification. When asked at trial if it was easier for her to identify someone in person than through a photograph, she said yes.
2 Norma thought the seco nd robber was wearing a hat, but not a mask.5 Norberto and Norma described the second robber's gun as silver in color. 3 Norberto testified it was the kind of gun th at "you put a [cartridge] on." Post-offense Searches After defendant was identified as a susp ect, the police conducted a search of his personal items and his residence on February 8, 2011. In defendant's wallet, they found $376 in cash, including a 2-dolla r bill. During a search of his home that same day, the police found in his bedroom clos et ten 100-dollar bills folded up inside a shoe, and 15 2- dollar bills and his identification card inside a purse. On a shelf in a kitchen cupboard, the police found a loaded gun wrapped in a plastic bag. The gun was a 9-millimeter semiautomatic pistol with a magazine that is inserted into the gun. After Zavala was identified as a suspec t, the police searched his residence on February 17, 2011, and found three "air guns" or "BB guns" in the garage. A detective testified that one of the guns was black; it was made out of "high density plastic"; and it looked like a real gun. Information retrieved from defendant's a nd Zavala's cell phones tied them to the two donut shop robberies. Numerous late night phone ca lls had been made from their cell phones to various eateries, and the caller identification feature had been blocked for these calls. Zavala's cell pho ne showed these phone calls on January 27 and February 7, 2011, including a call to Chri sty Donut's Shop shortly before the January 28 robbery.

3 Norma said it was "kind of like silver colored."6 Defendant's cell phone showed these calls on February 7 and 8, 20 11, including a call to Yum Yum Donuts shor tly before the February 8 robbery. Jury Verdicts and Sentence Defendant was charged with two counts of robbery for the Ch risty's Donut Shop robbery and two counts of robbery for the Yum Yum Donuts robbery , with personal gun use enhancements for each of these counts. He was also charged with burglary of the 7- 11 store, and possession of a firearm by a fel on. The jury found him guilty of these charges. 4 Based on the current charges, plus a se rious felony prior conviction and a strike prior conviction, the court sentenced defendant to 38 years 4 months in prison.
DISCUSSION
I. Sufficiency of the Evidence that Defendant Used a Real Firearm Defendant argues the record does not suppor t a finding that he used a real firearm during the robberies to establish the persona l firearm use enhancement under Penal Code section 12022.53, subdivision (b). 5

4 Zavala was also charged with the two d onut shop robberies and the burglary. He was charged with enhancements for bein g "a principal in the commission of a felony . . . if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm." (Pen. Code, § 12022, subd. (a)(1).) Zavala was convicted of these charges, plus he wa s convicted of the count based on the taco shop robbery as to which de fendant was acquitted. Unlike defendant, Zavala was not charged with the personal gun use enhancement. (Pen. Code , § 12022.53, subd. (b).)
5 Subsequent unspecified statutory references are to the Penal Code. Section 12022.53, subdivis ion (b) requires a 10-year sentence enhancement for personal firearm use during specified felonies.7 To qualify as a firearm under the sec tion 12022.53 personal gun use enhancement, the gun must be a real gun in the sense that the gun's projectile is expelled by the force of an explosion or other form of com bustion. (§§ 12001, 16520, subd. (a); People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 [toy guns, incl uding BB or pellet guns, are not firearms for purposes of the personal gu n use enhancement because the projectile is expelled by the force of air or gas pressure or spring action].) Circumstantial evidence may be used to prove that a defendant used a real gun, including facts showing that the defendant used what appear ed to be a real gun in a threatening fashion. ( People v. Dominguez (1995) 38 Cal.App. 4th 410, 421-422; Monjaras, supra , at pp. 1435-1437; see People v. Hunter (2011) 202 Cal.A pp.4th 261, 278; People v. Law (2011) 195 Cal.App.4th 976, 984.) On appeal, we review the en tire record in the light most favorable to the judgment to determine whether there is substantial ev idence from which a reasonable trier of fact could find the allegations true beyond a reasonable doubt. ( People v. Dominquez, supra , 38 Cal.App.4th at p. 421.) We presume in support of the ju dgment the existence of every fact the trier of fact could reason ably deduce from the evidence. ( Ibid .) If the circumstances reasonably support the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconc iled with a contrary finding. ( Ibid .) The record supports a finding that the gu n used by defendant during the robberies was real. First, the jury could consider th at defendant used the gun in a threatening manner that suggested it was real, and there wa s nothing to suggest the gun was not real.8 During the robberies, the gun was pointed dire ctly at the victims in a frightening manner that caused the victims to promptly comply with defendant's demands. Second, a real gun was found at defendant 's residence on the same date as the second robbery on February 8. The jury co uld reasonably infer that given the close temporal proximity between the second r obbery and the presence of the gun at defendant's residence, this was the gu n he used to comm it the robberies. Defendant raises a variety of fact-based challenges to the jury's gun use finding, including that there was no evid ence that the gun at his residence was actually linked to the robberies or that he owned or touche d it; the robbery victims described the second robber's gun as silver whereas the gun at his residence was "black to blackish-grey"; and he made no statements during the robberies suggesting that he had the capability to shoot or kill the victims. Although these were releva nt factors for the jury to consider, none of them defeat the sufficiency of the evidence to sup port the jury's finding that he used a real gun. As stated, a finding that a gun was real can be based on circumstantial evidence. Here, the threat ening manner in which defenda nt used the gun during the robberies, and the presence of a real gun at his home on the date of the second robbery, support an inference that he used a real gun. Further, we have examined photographs of the gun found at defendant's residence that were submitted into evidence, and are sa tisfied that in the he at of a quick-paced robbery the gun depicted in the photos could reasonably be viewed as silver. The photographs show a dark, metallic-looking gun with silver-looking components. Also, a prosecution witness described (and a photogr aph depicts) the gun found at defendant's9 residence as a semiautomatic weapon with a magazine that "gets inserted," which is consistent with victim Norberto's descripti on of the gun as having a cartridge that is "put . . . on." The jury could reasonably co nclude defendant used a real gun during the robberies based on a consideration of all the circumstances, including his use of a silverlooking gun with a cartridge to intimidate the victims, and the presence of a real gun similar in appearance at his home close in time to the second robbery. Defendant asserts the jury's personal gu n use finding must be reversed because codefendant Zavala was not charged with this enhancement even tho ugh he also used a real-appearing gun in a threatening manne r during the robberies. (See fn. 4, ante .) During closing argument, the prosecutor told th e jury that even though Zavala "very well could have been using a r eal gun," he was not charged with the personal gun use enhancement because a BB gun th at looked like a real gun was found at his residence. Defendant's challenge to the personal gun use finding based on the manner in which Zavala was charged is unavailing. For purposes of substan tial evidence review, the only relevant inquiry is whether the personal gun use enhancement is supp orted for defendant, which it is. The fact that the prosecution ex ercised its discretion to charge Zavala in a more lenient fashion does not provide a basis to reverse a finding that is supported by the evidentiary record.
II. Corrections The Attorney General agrees with defendant's contention that there are two errors that should be corrected.10 First, defendant was awarded 553 days of custody credits, whereas he should have been awarded 576 days. He was arrested on Fe bruary 8, 2011 and sentenced on June 22, 2012, which entitles him to 501 days of act ual custody credits and 75 days of conduct credits under section 2933.1 (15 per cent of 501), for a total of 576 days. Second, the abstract of judgment stat es that his count 7 conviction was for robbery, whereas it was for possession of a firearm by a felon (former § 12021, subd. (a)(1)). DISPOSITION The judgment is modified to award defendant 576 days of custody credits, consisting of 501 days of actual custody credits and 75 days of conduct credits under section 2933.1. As so modifi ed, the judgment is affirmed. The superior court shall amend the abstr act of judgment to state (1) the correct amount of custody credits, and (2) the count 7 conviction is for possession of a firearm by a felon (§ 12021, subd. (a)(1)). The superior court shall forward a copy of the amended abstract of judgment to the Departme nt of Corrections and Rehabilitation.

HALLER, J. WE CONCUR:

M C CONNELL, P. J.

M C INTYRE, J.