Godwin

Elaine Godwin appeals from the judgment entered following a jury trial resulting in her convictions for five counts of second degree robbery and attempted second degree robbery (Pen. Code, §§ 211, 213), with five findings she used a deadly and dangerous weapon, a starter pistol (Pen. Code, § 12022, subd. (b)), and three findings the victim was sixty-five years of age or older (Pen. Code, § 667.9, subd. (a)). She contends: “I. The trial court violated appellant’s right to a fair trial by restricting the defense cross-examination of an adverse witness. II. Modifications to the reasonable doubt jury instruction failed to adequately define that standard as required by the federal Constitution and violated ex post facto principles of the State and Federal Constitutions. III. Appellant’s sentence in this matter was improperly enhanced pursuant to Penal Code section 12202(b).”

Facts

I. Count 2 Robbery as to Louise Fischer With the Use of a Deadly and Dangerous Weapon and a Finding the Victim Was 65 Years of Age, or Older.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [ 26 Cal.Rptr.2d 23 , 864 P.2d 103 ]), the evidence…

I dissent from the majority’s conclusion that use of a starter pistol, which a robbery victim reasonably believed was a real gun, does not constitute use of a dangerous weapon within the meaning of Penal Code section 12022, subdivision (b) (statutory references are to the Penal Code).

The majority reach their erroneous result by relying upon People v. Reid (1982) 133 Cal.App.3d 354 [184 CaLRptr. 186], a case which misread and misstated the holding of People v. Aranda (1965) 63 Cal.2d 518 [47 CaLRptr. 353, 407 P.2d 265 ]. I explain.

In Aranda , Justice Traynor considered two disparate weapons provisions that might arise upon retrial. One involved then section 211a which provided *1576 that robbery “perpetrated . . . by a person being armed with a dangerous or deadly weapon" is robbery of the first degree. The other was section 3024, subdivision (b) and involved minimum sentences for defendants “armed with a deadly weapon.”

As to the latter provision Justice Traynor stated: “Section 3024, subdivision (b), of the Penal Code provides that a person with a prior felony conviction is subject to a minimum sentence of four years if at the time of the offense he was ‘armed with a deadly…

Elaine Godwin appeals from the judgment entered following a jury trial resulting in her convictions for five counts of second degree robbery and attempted second degree robbery (Pen. Code, §§ 211, 213), with five findings she used a deadly and dangerous weapon, a starter pistol (Pen. Code, § 12022, subd. (b)), and three findings the victim was sixty-five years of age or older (Pen. Code, § 667.9, subd. (a)). She contends: "I. The trial court violated appellant's right to a fair trial by restricting the defense cross-examination of an adverse witness. II. Modifications to the reasonable doubt jury instruction failed to adequately define that standard as required by the federal Constitution and violated ex post facto principles of the State and Federal Constitutions. III. Appellant's sentence in this matter was improperly enhanced pursuant to Penal Code section 12202(b)."

Viewed in accordance with the usual rules on appeal ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [ 26 Cal. Rptr.2d 23 , 864 P.2d 103 ]), the evidence established that at 1:55 a.m. on September 8, 1994, Louise Fischer, age 75, was sitting on a bench in front of Robert's Department Store,…