No. G053071.

THE PEOPLE, Plaintiff and Respondent, v. MARCELLO QUEZADA, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.

Attorney(s) appearing for the Case

Christopher Love , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Eric A. Swenson , Felicity Senoski , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Toy guns have been around for decades. Some look like real guns and many replicas are hard to spot. But here the jury convicted defendant Marcello Quezada of two offenses and three enhancements finding he used a real gun, not a fake, replica, toy, or imitation gun. The jury found defendant guilty of second degree robbery (Pen. Code §§ 211, 212.5, subd. (c))1 and possession of a firearm by a prohibited person (§ 29800, subd. (a)(1)). As to the robbery count, the jury found true enhancements that defendant personally used a firearm during the commission of the offense (§§ 12022.53, subd. (b), 12022.5, subd. (a)) and that defendant was armed with a firearm during the commission of the offense (§ 12022, subd. (a)(1)). The court found true four alleged prison priors and sentenced defendant to 14 years in state prison. Defendant appeals the judgment.

Defendant contends there was insufficient evidence he used a real gun in the commission of the robbery. Defendant concedes case law is clearly against him but argues as realistic replica guns become increasingly common in our society, due process should require the People to present more conclusive evidence a real gun was used. However, the robbery itself was very real, and the victim was scared when she saw defendant's gun, which he used to coax her into compliance. We find substantial evidence supported the jury's implied finding the gun defendant used to commit the robbery was real. We decline defendant's invitation to extend, modify, or reverse existing law. To the extent any change in the law is warranted in light of currently available realistic-looking replica guns, the task is within the Legislature's purview. Accordingly, we affirm.


In December 2012, defendant entered a convenience store and approached the cashier, Karla Guevara. Mohammad Bhuyan was also working at the store that day. Defendant apologetically told Guevara he was going through hard times and needed money. Guevara thought he might be joking. Defendant then became angry and told Guevara to open the cash register, and Guevara realized she was being robbed. Her heart began to race and she was scared.

Defendant lifted up his jacket over his left hip and revealed the handle of a gun tucked into his waistband. The gun's handle and trigger were exposed when he lifted his jacket. He pointed to the gun. Guevara testified she had never seen a real gun before, so there was no way she could tell if the gun was real or a fake. Bhuyan testified he did not know what kind of gun it was, but it was short and small, "a revolver or something else" about six or seven inches long. He could only see the handle and could not determine if it was real or a fake. Defendant never pulled the gun out, never touched it, and never shot it. Even so, Guevara thought she might be shot by defendant. Bhuyan froze and was scared when he saw the gun.

Guevara told defendant she could not open the register unless he bought something so defendant grabbed a lighter and scanned it. Guevara handed defendant some, but not all, of the money in the cash register. Defendant reached over the counter and took the remaining money from the cash register. Defendant fled the store parking area in a silver car. Guevara recorded the license plate number and called 911. Defendant became a suspect when paperwork bearing his name was later located in the vehicle along with glasses and clothing that resembled what the robber wore.


Sufficiency of the Evidence

Defendant contends there was insufficient evidence he used a real gun in the robbery. "`When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine `whether, after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court `presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Avila (2009) 46 Cal.4th 680, 701.) A reviewing court does not reweigh evidence or reevaluate a witness's credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

A gun or firearm is defined by statute as "a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion." (§ 16520, subd. (a).) As relevant here, an "`imitation firearm,'" by contrast, is defined as "any BB device, toy gun, replica of a firearm, or other device that is so substantially similar in coloration and overall appearance to an existing firearm as to lead a reasonable person to perceive that the device is a firearm." (§ 16700, subd. (a)(1).) A realistic replica gun, a pellet gun, or a BB gun is not a gun as a matter of law if it does not fire a projectile by means of combustion. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).)

Without proof defendant possessed a real gun, he cannot be convicted of being a felon in possession of a firearm. (See § 29800, subd. (a)(1) ["Any person who has been convicted of a felony . . ., and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony"].) Likewise, while personally using a firearm during a robbery results in a mandatory 10-year sentence enhancement (§ 12022.53, subd. (b)), there is no enhancement for personally using a replica or imitation firearm during a robbery.2 Defendant thus argues the People never proved the gun in defendant's waistband was real, and therefore there was insufficient evidence to support the gun-related conviction and enhancements. We disagree.

Monjaras, supra, 164 Cal.App.4th 1432 is a factually similar case. In Monjaras, a jury convicted the defendant of robbery and found he personally used a firearm. (Id. at p. 1434.) The defendant had told the female victim, "`Bitch, give me your purse'" and then pulled up his shirt displaying the handle of a black pistol tucked in his waistband. (Ibid.) On appeal the defendant contended the personal use allegation was sustained merely on conjecture because there was no evidence the gun was real. (Id. at p. 1435.) The court was not convinced. Noting, "Circumstantial evidence alone is sufficient to support a finding an object used by a robber was a firearm." The court stated, "Most often, circumstantial evidence alone is used to prove the object was a firearm. This is so because when faced with what appears to be a gun, displayed with an explicit or implicit threat to use it, few victims have the composure and opportunity to closely examine the object; and in any event, victims often lack expertise to tell whether it is a real firearm or an imitation. And since the use of what appears to be a gun is such an effective way to persuade a person to part with personal property without the robber being caught in the act or soon thereafter, the object itself is usually not recovered by investigating officers." (Id. at p. 1436.) Even though "a firearm need not be loaded or even operable, `words and actions, in both verbally threatening and in displaying and aiming [a] gun at others, [can] fully support[] the jury's determination the gun was sufficiently operable [and loaded].' [Citation.] Accordingly, jurors `may draw an inference from the circumstances surrounding the robbery that the gun was not a toy.'" (Id. at p. 1437.) The Monjaras court held "the victim's inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm." (Id. at p. 1437; see People v. Aranda (1965) 63 Cal.2d 518, 532, disapproved on other grounds in People v. Capistrano (2014) 59 Cal.4th 830 ["Testimony by witnesses who state that they saw what looked like a gun, even if they cannot identify the type or caliber, will suffice to prove gun was not a toy].)

Here, the evidence defendant used a real gun is admittedly thin, but it is nearly identical to the evidence before the court in Monjaras, and result is the same. The only direct evidence of the gun comes from the two eyewitnesses to the robbery. Guevara had never seen a gun before, so she could not determine whether it was real or a fake. Bhuyan also did not know whether it was real or a fake. Circumstantial evidence, however, reveals defendant lifted his jacket to reveal the gun when Guevara showed hesitancy in opening the register. From this it is reasonable to infer defendant intended his display of the gun as an intimidating act designed to coax Guevara into compliance with his demands. She was scared and acted accordingly. Bhuyan was also scared and froze when he saw defendant's gun. Indeed, 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 used was a real firearm, not a toy." (Monjaras, supra, 164 Cal.App.4th at p. 1435.) When criminals 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. So it is here.

Due Process

Defendant contends due process under the Fifth and Fourteenth Amendments requires that additional evidence be presented demonstrating the gun was in fact real, before a jury or a court can find beyond a reasonable doubt that the gun was real. He argues replica guns are so realistic that even police officers often cannot differentiate between a real gun and a toy gun. Hence, according to defendant, a witness's belief he or she saw a real gun is simply not enough. He urges us to extend, modify or reverse existing law to conform to his argument. (See Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 557.)

In support of his argument, defendant requests we take judicial notice of several news articles concerning incidents where replica guns were or could be mistaken for real guns. The evidence was not submitted to the trial court, so we decline to consider it on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [appellate court reviews correctness of judgment at time of rendition upon record of matters before the trial court for its consideration].)

The governance of real versus imitation firearms and the punishment for using them is within the purview of the Legislature. (See e.g., Gov. Code § 53071.5, subd. (a) ["Legislature occupies the whole field of regulation of the manufacture, sale, or possession of imitation firearms"].) We leave it to the Legislature to amend the Penal Code to heighten the standard of proof for conviction of gun-related crimes if it so desires. (See People v Freeman (1994) 8 Cal.4th 450, 504 [regarding reasonable doubt instruction, court recommended Legislature amend Penal Code to provide more comprehensible and helpful instruction to guide California jurors in future criminal cases].)


The judgment is affirmed.

O'LEARY, P. J. and ARONSON, J., concurs.


1. All statutory references are to the Penal Code unless otherwise stated.
2. However, "Every person who, except in self-defense, draws or exhibits an imitation firearm . . . in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a misdemeanor. . . ." (§ 417.4.) Defendant was not charged under section 417.4.


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