Tuesday, July 22, 2008
Defendant’s Use of Object Resembling Gun Supports Firearm Enhancement—C.A.
By a MetNews Staff Writer
Where a defendant commits a robbery by displaying an object that looks like a gun, the object’s appearance and the defendant’s conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm as a matter of law the Third District Court of Appeal held yesterday.
The panel agreed with retired El Dorado Superior Court judge Gregory Haas, sitting by assignment in the Sacramento Superior Court, that the victim’s inability to say conclusively that a gun brandished by the defendant was not a toy did not create a reasonable doubt as a matter of law that the object was a firearm.
Jerome Monjaras and an accomplice allegedly approached a female victim late at night in an apartment complex’s parking lot, and demanded her purse. Monjaras then raised the hem of his shirt to display the handle of a black pistol tucked in his waistband, according to testimony.
After the victim surrendered her wallet, Monjaras’ accomplice pressed something against the victim’s back and took her purse from her shoulder.
A jury convicted Monjaras of robbery and found he personally used a firearm within the meaning of Penal Code Sec. 12022.53(b), which applies to “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.”
Monjaras contended the personal use allegation was sustained on mere conjecture because there was no evidence presented to the jury to support an inference that the gun in his waistband was real.
Writing for the appellate court, Presiding Justice Arthur G. Scotland explained that Monjaras “was not engaged in a childhood game of cops and robbers,” but in a “real robbery,” and that it was highly unlikely that a robber would use a toy gun or inoperable weapon during a robbery.
He cited the adage, “‘if it looks like a duck, and quacks like a duck, it’s a duck.,’” concluding that the pistol tucked into defendant’s waistband looked like a firearm, and it communicated that it was a firearm when defendant menacingly displayed it and ordered the victim to give him her purse, therefore, it was a firearm within the meaning of firearm use enhancement set forth in Penal Code Sec. 12022.53(b).
The issue was well settled by past decisions, Scotland added. “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,” he wrote.
Justices George Nicholson and Tani Cantil-Sakauye joined Scotland in his opinion.
The case is People v. Monjaras, 08 S.O.S. 4305.
Copyright 2008, Metropolitan News Company