P. v. Escbedo

Filed 6/26/07 P. v. Escbedo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James M. Brooks, Judge. Affirmed.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Manuel Escobedo was convicted of two counts of attempted murder, one count of shooting at an occupied vehicle, two counts of possession of marijuana for sale, and one count of sale or transportation of marijuana. A jury also made true findings on two firearm enhancements.

Defendant challenges the sufficiency of the evidence for the attempted murder convictions, arguing there was insufficient evidence he was the shooter. In addition to the identification by the victim eyewitness, there was significant circumstantial evidence identifying defendant as the shooter. Although defendant argues the victim eyewitnesss testimony was not reasonable, credible, or reliable, the weight to give that testimony was a question for the jury, not for this appellate court, to decide.

Defendant also challenges the trial courts imposition of consecutive sentences, arguing his constitutional rights to due process and a jury trial were violated when the trial court made findings that were not proven to a jury beyond a reasonable doubt. The imposition of a consecutive rather than a concurrent sentence, however, does not violate the rule against imposition of an upper term sentence based on facts not found by a jury, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Therefore, we reject defendants challenge to his sentence, and affirm the judgment.

Statement of Facts and Procedural History

About 6:00 p.m. on August 13, 2004, Abraham Martinez and Thomas Moore were walking into a shoe store in Anaheim. Before they entered the store, Moore saw defendant, whom he recognized as Kid, mad-dogging him. Moore had seen defendant sell marijuana to a friend several months earlier.

When Martinez and Moore later left the store, they got into Martinezs van; Martinez was driving and Moore was in the front passenger seat. As Martinez started to drive out of the shoe store parking lot, defendant drove up next to the van in a black Toyota Tundra truck. Defendant pointed a black, nine‑millimeter, semiautomatic handgun at Martinez and Moore, and said, wheres my money?

Defendant, in the black truck, chased Martinez and Moore, in the van, onto the city streets. Several shots were fired from the black truck, striking the van and striking Moore.

After the chase ended,Martinez drove Moore back to his house; Moore was ultimately taken to the hospital. While still in the hospital four days later, Moore picked defendants photograph out of a six-pack photographic lineup, and identified him as Kid and as the person he saw pointing a gun at him from the black truck. Moore told the police officer he recognized defendant from an incident several months earlier when a friend bought marijuana from defendant.

Several days after the shooting, defendant was arrested in front of a house, while attempting to sell $20 worth of marijuana. A search of defendants black Toyota Tundra truck revealed marijuana and three black gloves with gunshot residue on them. There was also a burn mark on the trucks jump seat in the size and shape of a nine‑millimeter shell casing.

A search of defendants bedroom revealed nine baggies containing a total of approximately 175 grams of marijuana packaged for sale, and a number of items bearing the name Kid. After initially denying it, defendant admitted previously being known as Kid, but denied having used that nickname for a period of time.

Defendant denied being at the shoe store before or at the time of the shooting, or participating in the vehicle chase or the shooting. Defendant admitted that later the same day, he and his aunt went to the shoe store in his aunts car to buy shoes for him. While in custody after his arrest, defendant made a telephone call during which he used the name Kid and stated he was accused of shooting a 14 year old, although the detective who interviewed him had not told him the age of the victim. (At the time of the shooting, Moore was 14 years old.) The phone call had been recorded, and was played for the jury.

Defendant was charged in an information with attempted murder (Pen. Code,  187, subd. (a), 664, [counts 1 and 2]), shooting at an occupied motor vehicle (id.,  246 [count 5]), possession of marijuana for sale (Health & Saf. Code,  11359 [counts 3 and 6]), and sale or transportation of marijuana (id.,  11360, subd. (a) [count 4]). The information alleged the attempted murders were committed willfully, deliberately, and with premeditation. (Pen. Code,  664, subd. (a).) It also alleged that in committing count 1, defendant personally and intentionally discharged a firearm causing great bodily injury (id.,  12022.53, subd. (d)), and in committing count 2, defendant personally and intentionally discharged a firearm (id.,  12022.53, subd. (c)). A jury convicted defendant on all counts, and found true the firearm enhancements. The jury found the allegations that the attempted murders were committed willfully, deliberately and with premeditation not true.

Defendant was sentenced to 42 years eight months to life. The trial court sentenced defendant to the midterm of seven years on count 1, plus a consecutive term of 25 years to life on the attendant firearm enhancement; a consecutive nine‑year term on count 2 (one-third of the seven‑year midterm plus one-third of the 20‑year term on the attendant firearm enhancement); a consecutive one-year term on count 4 (one-third of the three‑year midterm); and a consecutive eight‑month term on count 6 (one-third of the two‑year midterm). Imposition of sentence on counts 3 and 5 was stayed pursuant to Penal Code section 654. Defendant timely appealed.

Discussion

I.

Sufficiency of the Evidence

Defendant challenges his convictions for attempted murder, claiming there was insufficient evidence of his identity as the shooter. In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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.] (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

In this case, the evidence supported the jurys conclusion that defendant was the shooter. Moore identified defendant in a photographic lineup several days after the shooting. Moore also identified defendant at trial as the person he saw outside the shoe store before the shooting. Moore also testified he was pretty sure defendant was the individual in the black truck who shot him. Defendant argues Moores identification of him as the shooter was not reasonable, reliable, or credible, since Moore was unable to identify the shooter immediately after the shooting, and because there was evidence Moore was under the influence of drugs and alcohol at the time of the shooting.

The weight to give to any particular piece of evidence and the credibility of the witnesses at trial are matters for the jury to decide. (People v. Lindsay (1964) 227 Cal.App.2d 482, 493-494.) Here, the jury could give credence to Moores identifications of defendant in the photographic lineup and at trial, and discount the effect of drugs and alcohol on his ability to identify the shooter. [W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.] (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; see also People v. Elwood (1988) 199 Cal.App.3d 1365, 1372 [single witnesss uncorroborated testimony, unless physically impossible or inherently improbable, is sufficient to sustain a conviction, and [p]urported weaknesses in identification testimony of a single eyewitness are to be evaluated by the jury].)

In addition to Moores testimony, there was other evidence linking defendant to the shooting. Defendants aunt told an officer she was supposed to meet defendant at the shoe store on the day of the shooting, but he called her near the time of the shooting to tell her he was not at the store and to ask her to meet him at his brothers house nearby. The shoes defendant wanted were set aside for him when they returned to the store, having been selected by defendant earlier. Defendants brother told an officer it was odd that defendant came to his house that day because they had not been getting along. From this evidence, the jury could have inferred defendant was at the shoe store waiting for his aunt, but drove to his brothers house after the shooting.

There was testimony from several witnesses, including Moore, that the shooter was driving a black Toyota Tundra truck, which was the same color, make, and model of the vehicle defendant was driving that day and that he was driving when he was arrested. The burn mark on the seat of defendants truck, the fact the seat cover tested positive for gunshot residue, and the gloves that were found in the truck testing positive for gunshot residue all could lead to an inference by the jury that defendant had shot at Martinez and Moore from the truck. Defendant is correct in arguing this evidence could also be explained by the fact he frequented a shooting range, but it was for the jury to decide which of the reasonable inferences to draw from the facts.

Moore also identified the shooter as Kid. Ample evidence that defendant was known by this nickname was presented at trial, including defendants own admission he had gone by that nickname in the past, and numerous items found in defendants bedroom with that nickname on them. At the time he identified defendants photograph, Moore also told police officers he recognized defendant because he had been with a friend when he bought marijuana from defendant several months earlier. That identification testimony was bolstered by the facts that defendant was arrested while selling marijuana, and marijuana packaged for sale was found in defendants bedroom. Defendant also showed a consciousness of guilt by lying to the police officers when he was arrested about the nickname Kid and about being at the shoe store earlier the day of the shooting.

In sum, there was sufficient evidence to sustain the jurys verdict on the two counts of attempted murder.

II.

Consecutive Sentences

Citing Blakely, supra, 542 U.S. 296, and Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], defendant argues the imposition of consecutive sentences on counts 2, 4, and 6, and on the firearm enhancement attendant to count 2, violated his constitutional rights to due process and a jury trial because the findings in support of the consecutive sentences were neither admitted by defendant nor found true by the jury beyond a reasonable doubt. The United States Supreme Court has held Californias determinate sentencing law violates a defendants rights to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution to the extent it permits a trial court to impose an upper term sentence based on facts found by the trial court instead of by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 868-871].)[1]

Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856] did not address the issue of consecutive sentences. Penal Code section 669 provides that if a defendant is convicted of two or more offenses, the trial court shall direct whether the terms of imprisonment . . . shall run concurrently or consecutively. Contrary to sentences imposed under the determinate sentencing law where there is a statutory presumption in favor of the middle term, there is no such presumption in favor of concurrent as opposed to consecutive sentences. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) Thus, a consecutive sentence is within the statutory maximum and is not an increased sentence. That a court must make a finding to impose a consecutive sentence (Cal. Rules of Court, rule 4.425) does not change that conclusion. Thus, the imposition of consecutive sentences here did not violate Cunningham, supra, 549 U.S. at page ___ [127 S.Ct. at page 860], or Blakely, supra, 542 U.S. at page 305.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

OLEARY, ACTING P. J.

IKOLA, J.

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[1] We reject the Attorney Generals initial argument that defendant forfeited the right to make this argument on appeal by failing to raise it in the trial court. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089, 1103, who waived a challenge based on Blakely by failing to raise it at his sentencing hearing, defendant was sentenced after the California Supreme Court decided People v. Black (2005) 35 Cal.4th 1238, judgment vacated and caused remanded sub nom. Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210]. People v. Black held that Blakely did not apply to imposition of consecutive sentences. (People v. Black, supra, 35 Cal.4th at p. 1262.) Any objection by defendant would have been futile, as the trial court would have been required to follow People v. Black. Defendant therefore did not forfeit his right to make this argument on appeal. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.)