Filed 12/5/18 P. v. Javed CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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. Edward Sarkisian, Jr., Judge.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant contends there was insufficient evidence to support his robbery conviction. We conclude his conviction was supported by substantial evidence and affirm.

PROCEDURAL BACKGROUND

A jury convicted appellant of the following offenses: second degree robbery, with the additional allegation another principal armed with a firearm (Pen. Code,[1] §§ 211; 12022, subd. (a)(1)), possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)); and possession of a stun gun by a convicted felon (§ 22610, subd. (a)).

FACTUAL BACKGROUND

On December 30, 2016, around 11:00 a.m., Shingara Singh was inside of his brother’s liquor store, Liquor Bank, when the on-duty clerk, Daljit Kaur Gill, asked him to take care of customers while she used the restroom. Soon after, a male (the robber[2]) walked into the store and asked to buy a pack of Newport cigarettes. After Singh placed the pack on the counter, the robber drew a silver gun and said, “Give me the money. Hurry up, or else I’m going to shoot you.” Fearing for his life, Singh gave the robber approximately $150 from behind the counter, and the robber exited the store with the cigarettes.

Meanwhile, after Gill exited the restroom and witnessed the robber demanding money from Singh, she exited the store through a back door. Once outside her attention was drawn to a car parked in a location where she rarely saw cars parked. She noticed the engine was running and a person was sitting in the driver’s seat, but she could not see the driver’s face. Believing the car might be associated with the robber, she took a photograph of the car with her cell phone camera. The photograph captured the license plate number of the car and showed it was a gray Chrysler 200.

At trial, Singh and Gill both testified appellant was not the robber. Singh testified he did not recognize appellant, and Gill testified she could not say whether appellant was the driver of the Chrysler because she never saw the driver’s face.

Surveillance footage from cameras inside and outside of Liquor Bank was introduced at trial. The video showed the Chrysler parked in the same location Gill saw it parked during the robbery about an hour before the robbery. An individual, later identified as appellant, exited the Chrysler and entered Liquor Bank. Once inside of the store, appellant looked around, purchased a pack of gum, and left. In the video appellant wore a blue T-shirt, gray sweatpants, and a distinctive blue and white knit hat with a fuzzy ball on top. After exiting the store, appellant returned to the Chrysler and drove away. About an hour later, the Chrysler returned and parked in the same place. The robber exited the car, entered Liquor Bank, and robbed Singh at gunpoint while wearing blue rubber gloves. After completing the robbery, the robber exited the store and walked back toward the Chrysler.

Gill called 911 shortly after the robbery, and later provided the photograph of the Chrysler to the police. Approximately one hour after the robbery, appellant called 911 and reported the Chrysler stolen, claiming it had gone missing about an hour prior while he was inside of an apartment complex visiting his brother. Appellant agreed to meet with police, and a short time later officers contacted and detained him. When appellant was detained he was wearing a blue T-shirt, gray sweatpants, and a blue and white knit hat with a fuzzy ball on top. Officer Hunter Larios searched appellant and located blue rubber gloves and a pack of Newport cigarettes in his pants pockets. In a subsequent search of appellant’s residence officers located a box of .357 ammunition.

Officers Miguel Archan and Richard Blancas were present when appellant was detained. They both reviewed surveillance video from Liquor Bank and identified appellant as the person shown casing the store and driving the Chrysler an hour before the robbery, based on his clothing and physical features. Blancas opined that based on his training and experience as a robbery investigator, appellant appeared to be “casing” Liquor Bank, meaning he was observing the layout of the store, strategizing the best way to commit the robbery. Blancas also offered his opinion that based on his review of the surveillance video the firearm used during the robbery was a .357 Magnum revolver.

Dany Lay, the mother of appellant’s children and owner of the Chrysler, testified that appellant had access to her car on the day of the robbery, and that her car went missing that day. She denied speaking with appellant about the car or knowing he had taken the car. However, Blancas testified he interviewed Lay four days after the robbery, and she told him that on the day of the robbery appellant pleaded with her to report the Chrysler stolen, telling her “[t]his is the time that I need you.” He further testified Lay told him she refused to report the car stolen and told appellant he would have to report it himself.

DISCUSSION

Appellant contends his robbery conviction is not supported by substantial evidence, because he was never identified by eyewitnesses, and the circumstantial evidence identifying him as the aider and abettor to the robbery is “highly questionable.” We disagree.

“To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955 (Tripp).) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (Tripp, supra, at p. 955, italics omitted.) This standard of review also applies to circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Panah (2005) 35 Cal.4th 395, 488; People v. Bradford (1997) 15 Cal.4th 1229, 1329.)

The prosecution’s theory at trial was appellant aided and abetted the robbery by casing Liquor Bank and serving as the getaway driver. Appellant does not challenge the evidence establishing the elements of the crime but asserts there was insufficient evidence identifying him as the aider and abettor.

We find there was considerable circumstantial evidence identifying appellant as the aider and abettor. He parked outside of Liquor Bank and was captured on surveillance video casing the store while wearing a distinctive outfit. When he returned approximately one hour later with the robber, Gill photographed and captured the license plate number of the Chrysler, appellant’s getaway car. Soon after the robbery, in an apparent attempt to conceal his identity, appellant falsely reported the getaway car stolen after he pleaded with Lay, the true owner of the car, to do so herself. Appellant’s unsuccessful attempt to conceal his involvement by falsely reporting the car stolen was powerful evidence of consciousness of guilt. Moreover, several specific items were in appellant’s possession that connected him to the robbery, including blue rubber gloves, consistent with the gloves worn by the robber, Newport cigarettes, consistent with the cigarettes taken by the robber, and .357 ammunition, consistent with the gun used by the robber.

Appellant attacks the circumstantial evidence by pointing to Larios’s failure to document in his report either Gill’s statements or the Newport cigarettes found in appellant’s pocket, and Blancas’s failure to audio record Lay’s statements. While a police officer’s failure to document a statement or the discovery of evidence can be an appropriate attack on that officer’s credibility at trial, under the substantial evidence standard “it is the exclusive province of the … jury to determine the credibility of a witness.” (People v. Harris (2013) 57 Cal.4th 804, 849.) Unless a witness’s testimony was either “physically impossible or inherently improbable,” we will not substitute our evaluation of a witness’s credibility for that of the jury. (People v. Jones (2013) 57 Cal.4th 899, 963.) No aspect of either officer’s testimony meets this threshold.

Appellant’s two remaining contentions are not supported by the record. He states Blancas’s opinion the robber used a .357 Magnum was “shaped by his own belief appellant was guilty,” but provides no basis for the claim. In fact, Blancas articulated the basis for his opinion with specificity by noting the distinctive long barrel of a .357 Magnum visible in the video. Additionally, appellant notes there was a “gap” in the Liquor Bank surveillance videos and the time stamps were inaccurate, but fails to articulate how these characteristics undermined the videos’ evidentiary value or significance to the prosecution’s case.

Reviewing the record in its entirety, we conclude a rational trier of fact could have found appellant was the aider and abettor to the robbery. The surveillance footage of appellant inside of Liquor Bank, the photograph of the getaway car, the items found in appellant’s possession connecting him to the robbery, and appellant’s failed attempts to conceal his conduct, together provided a sufficient basis for the jury’s verdict. Therefore, appellant’s robbery conviction was supported by substantial evidence.

DISPOSITION

The judgment is affirmed.