In re Joshua R.

Filed 10/5/07 In re Joshua R. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jon N. Kapetan, Judge.

Juan M. Falcon, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stan Cross and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

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In a juvenile wardship petition (Welf. & Inst. Code, 602) filed August 29, 2006,^[1]it was alleged that appellant Joshua R., a minor, committed a violation of Penal Code section 246 (discharging a firearm at an occupied motor vehicle), and that in committing that offense, he acted for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (Pen. Code, 186.22, subd. (b)(1)). At the jurisdiction hearing on October 10, the juvenile court found the allegations true, and at the disposition hearing on November 14, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice and declared appellants maximum term of physical confinement (Welf. & Inst. Code, 731, subd. (b)) to be 12 years.

On appeal, appellants sole contention is that the evidence was insufficient to support his adjudication of the instant offense. We will affirm.

FACTS

Fresno County Deputy Sheriff Javier Puente testified that on August 19, in responding to a report of shots fired at a vehicle, he made contact with Antonio V. (Antonio) and observed what appeared to be two bullet holes in Antonios truck. Deputy Puente further testified that Antonio told him the following:

Antonio had known appellant from childhood. On August 19, Antonio was driving southbound on Del Rey Avenue past the intersection of American Avenue when a white Dodge Stratus turned south onto Del Rey behind him. The Stratus came to a stop, and appellant, who had a semiautomatic handgun in his hand, leaned out the right rear passenger window, at which point Antonio heard approximately four to five gunshots. Approximately 15 yards separated the two vehicles at the time. Appellant was wearing a cloth on his face, which concealed the portion of his face from the nose down. Antonio identified the driver of the Stratus as a person named Steven.

Deputy Puente testified further that Antonio was very confident in identifying appellant.

Detective Lyman of the Fresno County Sheriffs Department testified to the following: He spoke with Antonio on August 23. Antonio said he was afraid of reprisals, but he was willing to come forward. The detective showed Antonio photographs of appellant and Steven Gutierrez. From the photographs, Antonio identified appellant as the individual that shot at him, and Gutierrez as the driver of the vehicle.

Antonio testified that at approximately 4:30 p.m. on August 19, he was driving along Del Rey Avenue, when he came to the intersection of Del Rey and American Avenues, and turned right onto American Avenue.^[2]At some point, he saw a white Dodge automobile behind him. After he made the turn onto American, [s]omeone shot. Antonio heard four to five gunshots. There was a person in the drivers seat of the Dodge but Antonio did not remember if he saw a person in right front passenger seat or in the right rear passenger seat. He saw no one in the left rear passenger seat. He was [n]ot really able to see a person in the back seat of the Dodge. He did not see appellant in the Dodge, and he was positive appellant did not shoot at him. Antonio had gone to elementary school with appellant.

Antonio did not remember telling Deputy Puente either that he recognized the driver of the Dodge and the person in the right rear passenger seat or that the person in the right rear passenger seat was appellant. He also did not remember seeing a person in the car have anything disguising about his face, or that he told Deputy Puente that appellant had a white cloth covering the bottom part of his face. Antonio did recall telling Deputy Puente he saw a person leaning out of the right side of the car, holding a handgun in his hand.

Approximately four days after the shooting, someone from law enforcement came to Antonios home and showed Antonio photographs of two persons. Antonio identified one of the persons as appellant and the other as Steven. Antonio had attended elementary school with both persons. He did not remember telling the person who showed him the photographs that he (Antonio) had known both subjects all of [his] life and that they were the same subjects involved in shooting at [Antonio].

Antonio did not want to testify. He came to court only because he was under subpoena.

Meylin Cruz testified that on August 19 she was at a quincenada [sic]^[3]from 2:15 p.m. to 8:00 p.m., and appellant was also there during that entire time. Appellant testified that he was at a quincenada^[4]on the afternoon of August 19, he did not leave the party at any time between 4:00 p.m. and 5:00 p.m., he was not in a white Dodge Stratus that afternoon and he did not shoot at Antonio.

Detective Lyman spoke to appellant on August 25, at which time appellant claimed he could not recall where he had been at the time of the shooting and he did not know Steven Gutierrez.^[5]

DISCUSSION

Appellant challenges the sufficiency of the evidence supporting his adjudication of the instant offense. Specifically, he contends (1) the victims out-of-court identification of appellant as the perpetrator could not be confirmed at the trial and was therefore insufficient to sustain a conviction, and (2) the alibi evidence--Cruzs testimony that she was with appellant at a party on the afternoon of August 19--was sufficient to raise a reasonable doubt for the trier of fact and therefore [i]t was unreasonable for the Court [to] find the Petition true beyond a reasonable doubt.

Out-of-Court Identification

In People v. Cuevas (1995) 12 Cal.4th 252 (Cuevas), the California Supreme Court overruled the rule it had adopted in People v. Gould (1960) 54 Cal.2d 621, 631 that an out-of-court identification of the defendant that the identifying witness cannot or will not confirm at trial is not sufficient to sustain a conviction. Instead, the court held, the substantial evidence test should be used to determine whether an out-of-court identification is sufficient. (Cuevas,supra, 12 Cal.4th at p. 272.)

An appellate court, in applying this test, must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) [A]ny conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses . . . . ( People v. Breault (1990) 223 Cal.App.3d 125, 140; accord, People v. Cantrell (1992) 7 Cal.App.4th 523, 538 [ [c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment ].)

Under [the substantial evidence test], the probative value of the identification and whatever other evidence there is in the record are considered together to determine whether a reasonable trier of fact could find the elements of the crime proven beyond a reasonable doubt, thus provid[ing] . . . protection against a dubious out-of-court identification. (Cuevas, supra, 12 Cal.4th at p. 274.)

The court in Cuevas noted that an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification . . . . (Cuevas, supra, 12 Cal.4th at p. 265.) Unlike an identification at trial, an out-of-court identification is made before the suggestions of others and the circumstances of the trial may have intervened to influence a witnesss identification. (Ibid.) The court identified factors which may affect the significance of the witnesss failure to identify the defendant at trial, including whether . . . the witnesss failure to confirm the identification arises from fear or intimidation. (Id. at p. 268.) The court similarly identified factors that may affect the reliability of an out-of-court identification, including the identifying witnesss prior familiarity with the defendant. (Cuevas, supra, 12 Cal.4th at p. 267.)

Here, notwithstanding Antonios professed failure to recall identifying appellant as the person who shot at him, the court reasonably could have credited the testimony of Deputy Puente and Detective Lyman that Antonio, in fact, did so. Moreover, the following factors militate in favor of the reliability of Antonios out-of-court identification: Antonio had known appellant since childhood; he identified appellant as the shooter on the same day as the shooting, presumably when events were fresh in his mind; and he repeated his identification to Detective Lyman four days later. And a reasonable trier of fact could conclude, based on Antonios reluctance to testify and Detective Lymans testimony that Antonio admitted he feared reprisals, that Antonio was telling the truth when he spoke to Deputy Puente and Detective Lyman and then failed to confirm the identification in court due to fear of possible retaliation. On this record, substantial evidence supported the finding that appellant committed the instant offense.

Alibi Evidence

Appellant argues, in effect, that the juvenile court was compelled to credit Meylin Cruzs testimony that appellant was with her at a party at the time of the shooting. There is no merit to this contention. Cruzs testimony does no more than raise a conflict with the out-of-court identification evidence, and, as indicated above, under the substantial evidence test, such a conflict do[es] not justify the reversal of a judgment. (People v. Cantrell, supra, 7 Cal.App.4th at p. 528.)

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Dawson, J., and Kane, J.

^[1] All references to dates of events are to dates in 2006.

^[2] Except as otherwise indicated, the remainder of the factual statement is taken from Antonios testimony.

^[3] Cruz described this event as a Sweet 16 type of party. As respondent indicates, the word quincenada is probably an incorrect transcription of the word quinceaera.

^[4] See footnote 3.

^[5] Respondent presented evidence in support of the Penal Code section 186.22, subdivision (b) enhancement allegation. Because this evidence is not directly relevant to the contentions raised on appeal, we will forgo summarizing it.