P. v. Cowan

Filed 9/5/18 P. v. Cowan CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
VON EARLSAL COWAN,
Defendant and Appellant.
B285475
(Los Angeles County
Super. Ct. No. VA132673)
APPEAL from a judgment of the Superior Court of
Los Angeles County. Roger Ito, Judge. Affirmed in part, reversed
in part, and remanded with directions.
John F. Schuck, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven E. Mercer and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________

-- 1 of 18 --

2
Von Earlsal Cowan appeals the judgment following a jury
trial in which he was convicted on four counts of kidnapping to
commit robbery (Pen. Code,1 § 209, subd. (b)(1)); two counts of
simple kidnapping (§ 207); and 12 counts of robbery (§ 211).
The jury further found true with respect to all counts that Cowan
personally used a firearm. (§ 12022.53, subd. (b).) Following a
motion for a new trial, the trial court reduced the kidnapping
convictions on four counts to false imprisonment. (§ 236.) The
trial court imposed an aggregate sentence of 540 years to life.
Cowan contends that: (1) the evidence is insufficient to
support the remaining two counts of kidnapping to commit
robbery; (2) the evidence is insufficient to support the jury’s
findings that he used a firearm in connection with the offenses;
and (3) the sentence must be reversed to permit the trial court to
determine whether the enhancements for use of a firearm should
be stricken pursuant to the recently amended section 12022.53,
subdivision (h). We agree that the evidence cannot support
Cowan’s conviction for kidnapping to commit robbery on counts 1
and 2. The only movement of the victims was incidental to the
robbery itself. Pursuant to section 1181, subdivision 6, we
therefore reduce the convictions on counts 1 and 2 to false
imprisonment. (§ 236.)
However, we disagree with Cowan’s second argument that
the evidence was insufficient to support the jury’s findings on the
firearm enhancements. Witnesses saw Cowan with a gun at each
robbery, and Cowan used the gun to intimidate the robbery
victims as if it were real.
1 Undesignated statutory references are to the Penal Code.

-- 2 of 18 --

3
With respect to Cowan’s third argument, the Attorney
General agrees that the recent amendment to section 12022.53,
subdivision (h) applies to this case. Thus, on remand, Cowan
must be resentenced and the trial court should exercise its
discretion at resentencing to determine if any of the firearm
enhancements should be stricken.
BACKGROUND
1. The Robberies
a. Morales and Sons Wireless on July 3, 2013
(Counts 6 & 7)
Cowan entered the store, asked an employee a question,
and later returned. He held a gun in his hand and told the
employee that he wanted the money in the register. When the
employee did not give him the money, Cowan grabbed her by the
hair and threw her on the floor. He put the gun to her head and
then to her chest. With the gun against her head Cowan told her
not to move or “otherwise he was going to shoot me.”
Cowan pulled the employee by the hand to a back room in a
warehouse area where telephones were kept for sale. Cowan
threw her to the floor and told her not to move, and then shut the
door to the back room. Cowan and an accomplice filled some bags
with telephones and left.
b. Metro PCS in Bellflower on July 22, 2013
(Counts 8 & 9)
Cowan entered the store at around 7 p.m. There was one
employee in the store behind a counter. Cowan came around the
counter and placed a gun against the employee’s stomach. It
looked like a “regular handgun.”
Cowan asked the employee to get down behind the counter.
A customer came in, and Cowan asked for her wallet and purse.

-- 3 of 18 --

4
Cowan instructed the customer to get on the ground behind the
counter. After walking around the counter, the customer noticed
a gun in Cowan’s hand. The gun was metal, and dark gray or
silver in color.
Cowan and another man took the employee’s wallet and
cash along with telephones from the store and left. The employee
called the police. On the recording of the 911 call played at trial,
the customer could be heard in the background stating that the
gun was a “black nine,” meaning a nine-millimeter gun “[l]ike a
police gun.”
c. KJ Electronics on September 13, 2013
(Count 11)
Cowan came into the store, pointed a gun at an employee,
and instructed her to take the money out of the cash register.
The gun was black and appeared to be metal. The employee could
see down the barrel of the gun, and observed a hole about the
width of her finger.
Cowan took the employee by the hair to a back area where
telephones were stored. The employee gave Cowan the key to a
cage in which telephones were kept, and Cowan made her open it.
Cowan and an accomplice left the store with the telephones. The
employee hit a “panic alarm” and called the police.
d. Metro PCS in Los Angeles on September 20,
2013 (Count 12)
Cowan walked into the store and told an employee to “give
him the money.” The employee thought he might be joking, so he
asked “are you serious?” Cowan pulled up his shirt and revealed
the handle of a gun. To the employee, it appeared to be a
handgun like the guns that he has seen a police officer carrying.
The employee was afraid Cowan would pull out the gun, so she
handed him the money. Cowan left the store.

-- 4 of 18 --

5
e. Radio Shack in Encino on October 13, 2013
(Counts 14, 15, 16 & 17)
Cowan entered the store with a pistol. He told the two
employees working there to get down. He was joined by a second
person. The two robbers took the employees to the back room
where more expensive telephones were kept and told them to lie
on the ground. The robbers took merchandise out of a cage where
it was kept. The robbers told the employees to go into the
bathroom, where the employees waited until the robbers left.
f. Radio Shack in Pico Rivera on October 27, 2013
(Counts 1, 2, 24 & 25)
Cowan entered the store and pulled out a gun, which
appeared to be a black handgun, probably a semi-automatic
pistol. He held it to the back of one of the employees (Christa).2
Cowan walked behind Christa and the other employee in the
store, Lauren, and took them to a back room where they were told
to get face down on the floor. Cowan told the employees that he
would shoot them if they did not cooperate.
Two other men participated with Cowan in robbing the
store. They asked for the keys to a locked cabinet where the
telephones were kept. Christa got the keys and unlocked the
cabinet. The robbers put the telephones in a bag.
Christa was told to get up and go into the bathroom, which
opened into the back room. Christa asked about Lauren, as she
2 As discussed below, Cowan challenges the sufficiency of
the evidence underlying the aggravated kidnapping convictions
relating to this robbery. For clarity, we identify the employees by
name, using their first names to protect their privacy. No
disrespect is intended.

-- 5 of 18 --

6
did not want to go into the bathroom alone. Christa thought she
might be raped there. The robbers told Lauren to go into the
bathroom also. The robbers instructed them to lock the bathroom
door.
The two employees locked the bathroom door from the
inside so that “nobody comes in.” They waited until they could
not hear anything from the robbers. After a few minutes they
heard a customer come in and say “hello.” At that point they left
the bathroom.
g. Boost Mobile on November 8, 2013 (Counts 3 &
4)
Cowan came into the store and told an employee to open
the register. The employee refused, because he thought Cowan
was “playing.” Cowan lifted his shirt and the employee saw a gun
tucked in Cowan’s pants. The employee saw only the handle and
the trigger, but he believed it to be a real gun. The employee
opened the register and began taking the money out slowly.
Cowan told him to hurry up and then grabbed the money.
A manager was watching video surveillance in the back
room. He saw Cowan at the counter and heard him tell the
employee that the employee was taking too long. The manager
went out to see what was happening. Cowan told the manager
not to do anything stupid, and showed him the gun. The gun
appeared to have a cylinder “[l]ike the cowboys.” The manager
could see almost the whole gun, and it appeared to be real.
Cowan left with the money and said “don’t follow me.”
h. Radio Shack in Van Nuys on November 12, 2013
(Counts 19 & 22)
Cowan entered the store wearing a hoodie and engaged an
employee in conversation. A second person came in carrying a
bag. Cowan came around behind the register and asked where

-- 6 of 18 --

7
the safe was and where the phones were kept. Cowan led the
employee to the back room. The employee saw that Cowan had a
gun, which Cowan held to the employee’s back. The employee
was somewhat familiar with handguns, and identified the gun as
a “small firearm. Possibly a .9 millimeter. Not a Glock.”
When in the back room, Cowan told the employee to kneel
down and then lie on the floor. The two men took telephones
worth about $50,000.
A customer walked in while Cowan was taking money out
of the register. Cowan came over to him, grabbed him by the
arm, and said “come with me.” Cowan took the customer to the
back room while pointing a gun at his head. The gun was a silver
metal pistol, with a “rotation for the bullets to go around and
around.” After taking the customer to the back room, Cowan put
him on the ground and said “don’t move or I’ll kill you.”
2. Cowan’s Case
Cowan testified. He admitted to participating in the
robberies, but testified that he did so because a group of five or
six persons threatened to harm his son and his girlfriend if he
refused. He testified that the persons who forced him to
participate in the robberies had real guns but gave him a “dummy
gun.” He used the gun as a “pointer,” moving it around so that
people would know it was fake. He denied pointing it at anyone’s
face. Cowan testified that he did not know what happened to the
fake gun.
Cowan denied forcing anyone into a bathroom. He also
denied getting any benefit from the robberies.
3. Proceedings Below
Cowan was charged with 12 counts of second degree
robbery (§ 211) and 6 counts of kidnapping to commit robbery.

-- 7 of 18 --

8
(§ 209, subd. (b)(1).) He was also charged with enhancements for
personal use of a firearm on all counts. (§ 12022.53.)
The jury found Cowan guilty on all the robbery counts. The
jury also found Cowan guilty on all the kidnapping counts, but on
counts 14 and 16 found only the lesser included offense of simple
kidnapping. The jury found all of the firearm enhancements true.
Cowan filed a motion for a new trial, arguing that the
evidence was insufficient to support the kidnapping counts.
Citing the decision in People v. Williams (2017) 7 Cal.App.5th 644
(Williams), the trial court granted the motion with respect to four
of the kidnapping counts (counts 6, 14, 16, and 22). The court
denied the motion with respect to counts 1 and 2 concerning the
robbery of the Radio Shack on October 27, 2013. The trial court
reduced the offenses on counts 6, 14, 16, and 22 to false
imprisonment pursuant to section 1181. Taking into account
Cowan’s two prior strikes, two prior serious felonies and the
firearm enhancements, the trial court sentenced Cowan to
consecutive sentences of 45 years to life on 12 counts, and stayed
sentence on 6 other counts, for an aggregate sentence of 540 years
to life.
DISCUSSION
1. Standard of Review
In considering a challenge to the sufficiency of the evidence,
an appellate court must “ ‘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.’ ”
(People v. Avila (2009) 46 Cal.4th 680, 701, quoting People v.
Lindberg (2008) 45 Cal.4th 1, 27.) In conducting such a review,

-- 8 of 18 --

9
the court “ ‘presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.’ ”
(Avila, at p. 701, quoting People v. Kraft (2000) 23 Cal.4th 978,
1053.) The same standard of review applies whether direct or
circumstantial evidence is involved. (Avila, at p. 701.)
2. The Evidence Is Insufficient to Support the
Convictions for Aggravated Kidnapping on Counts 1
and 2
Section 209, subdivision (b)(1) provides that “[a]ny person
who kidnaps or carries away any individual to commit robbery . . .
shall be punished by imprisonment in the state prison for life
with the possibility of parole.” The offense requires proof that
“the movement of the victim is beyond that merely incidental to
the commission of, and increases the risk of harm to the victim
over and above that necessarily present in, the intended
underlying offense.” (§ 209, subd. (b)(2).)
In Williams, supra, 7 Cal.App.5th 644, the court considered
convictions under section 209, subdivision (b)(1) based upon a
series of robberies that were very similar to those involved in this
case. The defendants robbed “Radio Shacks and cell phone
stores.” (Id. at p. 653.) In each of the robberies, the perpetrators
moved the employee victims inside the store “from locations closer
to the front of the store (and visible from outside) to the rears of
the store or to back rooms, where the merchandise and/or cash
was kept.” (Id. at p. 669.) The court concluded that these
movements were incidental to the robberies themselves, as the
robbers brought the employees to “areas closer to the
merchandise they planned to take.” (Ibid.) The court rejected the
argument that moving the employees to the back of the store put
them at an increased risk of harm, concluding that the movement
simply facilitated the robbery by permitting the robbers to take

-- 9 of 18 --

10
merchandise from where it was stored “without detection by
customers or other people outside the store.” (Id. at p. 670.)
The same analysis applies here with respect to counts 1 and
2. The robbers moved the victims to a back stockroom of the
Radio Shack, where they ordered one employee to open a locked
cabinet containing merchandise. The victims were told to lie face
down on the floor. They were then ordered into a bathroom
adjoining the back room and instructed to lock the bathroom door
from the inside. All of these movements were incidental to the
robbery itself.
The Attorney General argues that Williams is not good
precedent because the court in that case relied on a more
stringent judicial standard for aggravated kidnapping that
predated a legislative change. In People v. Daniels (1969) 71
Cal.2d 1119 (Daniels), our Supreme Court explained that the
asportation requirement for kidnapping for robbery is not met
when the movements of the victim are “merely incidental” to the
crime and do not “substantially increase the risk of harm over and
above that necessarily present in the crime of robbery itself.” (Id.
at p. 1139, italics added.) In People v. Rayford (1994) 9 Cal.4th 1
(Rayford), the court subsequently reiterated the “substantial
increase” requirement in applying the Daniels asportation
standard to kidnapping for the purpose of various sexual crimes.
(Id. at p. 22.) In Williams, the court cited Daniels in stating that
aggravated kidnapping must include movement that
“substantially” increases the risk of harm to the victim.
(Williams, supra, 7 Cal.App.5th at pp. 667–668.)
However, in 1997 the Legislature codified the asportation
element for aggravated kidnapping by adding subdivision (b)(2) to
section 209. That subdivision does not use the term
“substantially.” (Stats. 1997, ch. 817, § 17.) Our Supreme Court

-- 10 of 18 --

11
has not yet considered what, if any, significance to give to this
change. (See People v. Dominguez (2006) 39 Cal.4th 1141, 1150,
fn. 5 [expressing no view on the asportation requirement under
§ 209, subd. (b)(2)]; People v. Vines (2011) 51 Cal.4th 830, 869, fn.
20 (Vines) [noting that the prior standard applied at the time of
the defendant’s crimes].)
We are not persuaded by the Attorney General’s criticism of
Williams based on this legislative change for several reasons.
First, the element of a “substantial” increase in the risk of harm
was not significant for the court’s holding in Williams. In
summarizing its holding based on the facts in that case, the court
did not mention the need for a “substantial” increased risk at all.
The court stated simply that the robbers’ “objective was robbery,
not harm to the store employees, and the record does not contain
sufficient evidence that moving the victims to the backs of the
stores resulted in an increased risk of harm from the robberies.”
(Williams, supra, 7 Cal.App.5th at p. 670.)
Second, the Attorney General does not cite any authority
suggesting that the Legislature’s omission of the term
“substantially” from its description of the asportation
requirement in section 209, subdivision (b)(2) was intended to
undermine the holding in Daniels. The legislative history
suggests that our Legislature intended to codify, not modify, the
court’s holding. Several committee reports state that the 1997
legislation was intended to “codify” Rayford and the “Daniels
test.” (Sen. Rules Com., Analysis of Assem. Bill No. 59 (1997-
1998 Reg. Sess.) as amended Sept. 4, 1997, pp. 3–4 (Rules
Committee Report); Sen. Com. on Public Safety, Analysis of
Assem. Bill No. 59 (1997-1998 Reg. Sess.) as amended June 3,
1997, pp. 3–4.) In People v. Martinez (1999) 20 Cal.4th 225, our
Supreme Court cited the Rules Committee Report in noting that

-- 11 of 18 --

12
section 209, subdivision (b)(2) codifies both Rayford and the
Daniels test, albeit in a modified form without the requirement
that the movement “ ‘substantially’ ” increase the risk of harm to
the victim. (Martinez, at p. 232, fn. 4.) As discussed below, the
holding in Daniels supports the reasoning and the result in
Williams. (Williams, supra, 7 Cal.App.5th at pp. 667–670.)
Third, we agree with the analysis in Williams regardless of
how the court articulated the controlling standard. The court
relied on sound logic and precedent in concluding that the
robbers’ movement of employee victims within the store to
facilitate access to valuables was incidental to the robbery itself.
(Williams, supra, 7 Cal.App.5th at pp. 669–670.)
In Daniels, the court held that the “brief movements” that
the defendant required the victims to perform were incidental to
the robberies and rapes that the defendant committed. (Daniels,
supra, 71 Cal.2d at p. 1140.) The defendant moved some of the
victims short distances within their houses, and moved another
victim a short distance to her car. The court concluded that,
“when in the course of a robbery a defendant does no more than
move his victim around inside the premises in which he finds
him—whether it be a residence, as here, or a place of business or
other enclosure—his conduct generally will not be deemed to
constitute the offense proscribed by section 209.” (Id. at p. 1140.)
(See also People v. Hoard (2002) 103 Cal.App.4th 599, 603
(Hoard) [moving victims to the back office of a jewelry store and
confining them there was incidental to robbery of the store];
People v. Washington (2005) 127 Cal.App.4th 290, 300 [movement
of bank employees to vault room to obtain money from the vault
was incidental to bank robbery].)
These precedents support the conclusion that the
movement involved in this case did not meet the asportation

-- 12 of 18 --

13
element of section 209, subdivision (b)(2). The two victims were
moved within the same building to an area containing the
merchandise that the perpetrators intended to steal. The
movement was incidental to the robbery itself.
The Attorney General argues that the additional
“gratuitous” movement of the victims into the bathroom
distinguishes this case from Williams and Hoard. But the
evidence does not support a reasonable conclusion that moving
the victims into the bathroom in this case caused any increased
risk of harm to them.
Critically, both victims testified that the robbers instructed
them to lock the bathroom door from the inside. Locking the
robbers out logically caused the victims to be more, not less, safe.
Christa testified that they locked the door “so nobody comes in.”
While Christa also testified that she was more afraid while she
was in the bathroom, the reasons for her fear that she identified
(such as the number of robbers and their use of a gun) had more
to do with the inherently frightening experience of the robbery
itself than with the movement to behind a locked door in the
bathroom.3 (See Hoard, supra, 103 Cal.App.4th at p. 607 [“the
victims may have been at less risk tied up in the back office
where they could not try to thwart the robbery than had they
remained at gunpoint in the front of the store”].)
3 The Attorney General cites Christa’s testimony that she
was afraid the robbers might rape her in the bathroom. But she
testified that she had that fear when she thought she might be
forced into the bathroom by herself, not when she was together
with Lauren in the bathroom behind a locked door.

-- 13 of 18 --

14
The Attorney General argues that the victims were less
safe in the bathroom because they could not hear or see what was
happening and they might have tried to escape before the robbers
had left. But the victims were able to listen through the
bathroom door once they turned the bathroom fan off, and they
did not leave the room until they heard a customer’s voice in the
store. On this record, the argument that the victims might have
tried to escape while the crime was still in progress does not rise
above speculation.4
Once the victims were in the bathroom, they did not see the
robbers again. The robbers did not use the victims’ confinement
in the bathroom to interrogate, threaten, or assault them or to
commit any other crimes. The only reasonable conclusion from
the evidence is that, as in Williams, the robbers’ objective was
“robbery, not harm to the store employees.” (Williams, supra, 7
Cal.App.5th at p. 670.) The record therefore does not contain
sufficient evidence that the movement into the bathroom resulted
in an increased risk of harm to the victims. (§ 209, subd. (b)(2).)
Basing a kidnapping conviction on the robbers’ decision to
place the victims into a separate room behind a locked door while
they completed their crime would have the perverse effect of
penalizing conduct that removed the victims from the scene of the
4 The facts here are very different from the facts in Vines,
supra, 51 Cal.4th 830. In that case, the victims were forced down
a stairway that was hidden from view into a freezer where the
temperature was about 20 degrees Fahrenheit. Such an
environment was not only inherently more dangerous, but it
increased the foreseeable risk of an escape attempt. (Id. at
p. 871.)

-- 14 of 18 --

15
crime and actually made them safer. While we do not wish to
minimize the victims’ trauma of being confined against their will
while the armed robbers committed their theft, the legal question
at issue is whether their movement into the bathroom increased
their risk from the robbery. On this record, we conclude that
such a finding is unreasonable. The trial court therefore should
have reduced the aggravated kidnapping convictions on counts 1
and 2 to false imprisonment as it did on the other kidnapping
counts.
3. The Evidence Supports the Firearm Enhancements on
Each Count
In contrast to the evidence concerning the aggravated
kidnapping convictions on counts 1 and 2, the evidence
concerning the firearms enhancements is sufficient to support the
jury’s findings. As summarized above, witnesses at each robbery
testified that Cowan used a gun to compel compliance.
Cowan acknowledges that the witnesses “saw what they
claimed appeared to be a real gun,” but argues that “none of them
provided conclusive evidence that it was, in fact an actual
firearm.” But “conclusive” evidence is not necessary. We must
uphold the jury’s verdict if the record contains substantial
evidence supporting conviction, that is, “evidence which is
reasonable, credible, and of solid value.” (People v. Johnson
(1980) 26 Cal.3d 557, 578.)
Here, there was testimony that witnesses saw Cowan in
possession of what appeared to be a gun. That testimony was
supported by circumstantial evidence that Cowan used the object
as if it were a gun to intimidate the victims. That evidence was
sufficient to support the jury’s finding, even if the witnesses had
no particular knowledge of firearms and could not rule out the
possibility that the gun was not real.

-- 15 of 18 --

16
In People v. Monjaras (2008) 164 Cal.App.4th 1432
(Monjaras), the court held that, when “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 within the meaning of section
12022.53, subdivision (b). In other words, 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.)
That holding is sound. A contrary rule would place an
unreasonably high burden on the prosecution to prove the use of a
firearm. As the court explained in Monjaras, few victims have
the “composure and opportunity” to examine weapons carefully
during a crime and in any event often lack the expertise to know
whether a firearm is real or an imitation. (Monjaras, supra, 164
Cal.App.4th at p. 1436.) Because the guns used in robberies are
often not recovered (ibid.), requiring “conclusive” evidence that a
firearm was real would preclude proof that a firearm was used in
most cases where no shots were actually fired.
Moreover, the jury here was entitled to consider evidence of
Cowan’s own threatening statements and behavior. That conduct
amounted to an admission that the gun was real by using it to
intimidate the victims. (See People v. Rodriguez (1999) 20
Cal.4th 1, 12–13 [evidence of a defendant’s statements and
conduct in connection with his use of a gun could support a
finding that the gun was loaded].)
The conclusion that the evidence supports the jury’s
findings is not undermined by Cowan’s testimony or by evidence
that deputies found an air pistol pellet gun at the residence
where Cowan was living. The jury was not required to believe

-- 16 of 18 --

17
Cowan’s testimony. Nor was it required to conclude that Cowan
used a pellet gun rather than a firearm for the robberies simply
because Cowan owned a pellet gun, especially in light of Cowan’s
own testimony that he obtained the fake gun that he used in the
robberies from another source.5
4. On Resentencing the Trial Court Must Consider
Whether the Firearm Enhancements Should Be
Stricken
Our conclusion that the convictions on counts 1 and 2 must
be reversed requires resentencing. The Attorney General also
agrees that resentencing is necessary to permit the trial court to
consider whether the firearm enhancements should be stricken as
authorized by recent legislation.
Effective January 1, 2018, section 12022.53, subdivision (h)
was amended to read: “The court may, in the interest of justice
5 The victim of the robbery at KJ Electronics testified that
a picture of the air pistol looked more similar to the gun Cowan
used in the robbery than a picture of the nine-millimeter
handgun. However, due to the passage of time she could not say
whether either of those items was the gun that Cowan actually
used. In addition, she recalled that, during the robbery, she could
see down the barrel of the gun and observed a hole about the
width of her finger. A sheriff deputy testified that the air pistol
has a smaller barrel than the nine-millimeter pistol, because the
air pistol barrel “has to be the same size” as the BB or pellet that
it shoots. The victim also testified that she thought the gun was
real during the robbery when Cowan pointed it at her. Under the
deferential standard of review that we employ in reviewing the
jury’s findings, this evidence is sufficient to support the firearm
enhancement on count 11.

-- 17 of 18 --

18
pursuant to Section 1385 and at the time of sentencing, strike or
dismiss an enhancement otherwise required to be imposed by this
section. The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” (Stats.
2017, ch. 682, § 2.) That amendment is applied retroactively to
all cases that were not final at the time it became effective.
(People v. Chavez (2018) 22 Cal.App.5th 663, 708–712; People v.
Arredondo (2018) 21 Cal.App.5th 493, 506–507.)
The Attorney General agrees that the new legislation
applies to this case. Accordingly, upon resentencing the trial
court must exercise its discretion to determine whether any of the
firearm enhancements should be stricken pursuant to section
12022.53, subdivision (h).
DISPOSITION
The judgment is reversed. Pursuant to section 1181,
subdivision 6, Cowan’s convictions on counts 1 and 2 are ordered
reduced to convictions for false imprisonment in violation of
sections 236 and 237, subdivision (a). In all other respects the
jury’s verdict is affirmed. The case is remanded for resentencing,
at which time the trial court shall exercise its discretion in
determining whether to strike any of the firearm enhancements
pursuant to section 12022.53, subdivision (h).
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J. HOFFSTADT, J.

-- 18 of 18 --