Filed 9/29/17 P. v. Reid CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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A jury found defendant Brett Reid guilty of assault with a deadly weapon for hitting victim Michael C. over the head with a baseball bat outside a muffler shop. (Pen. Code, § 245, subd. (a)(1).)[1] The jury also found true the allegation that defendant personally inflicted great bodily injury on Michael. (§ 12022.7, subd. (a).) The trial court subsequently sentenced defendant to an aggregate term of seven years in state prison.

On appeal, defendant contends the People failed to present evidence sufficient “to establish beyond a reasonable doubt that [he] was responsible for the injuries suffered by [Michael].” We conclude the eyewitness identification from Michael, the victim, and two other eyewitnesses was more than sufficient and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Attack

On April 22, 2015, Michael drove to a mini-mart to buy beer before joining his friends for beer and conversation outside the Hangtown Muffler shop. As he walked out of the mini-mart with his beer, Michael saw defendant in his white Isuzu mini pick-up truck outside the same mini-mart. Michael knew defendant, had known him for about 10 years, and he knew defendant was driving a white Isuzu in April 2015. Michael and defendant both used to date the same woman, Angela Prettyman, and they once argued over a car Michael was selling to defendant, but they were not close friends.

Michael drove away from the mini-mart toward Hangtown Muffler. At a nearby intersection he looked in his rearview mirror and saw defendant’s white Isuzu a few cars behind him; he believed defendant was following him. When Michael pulled into the parking lot at Hangtown Muffler, he saw defendant’s truck was still following him. He thought to himself, “Oh, shit, here we go.”

As he gathered his things from his truck, Michael turned, he saw defendant and then everything went hazy. The next thing he remembered, he was sitting in the front seat of his pick-up truck.

Michael’s friends Mickey Witherow, Monte Osborn, and Robert Ely, all were outside Hangtown Muffler that day just “hanging out.” Mickey saw Michael drive in and saw a little “neutral” colored Isuzu pick-up truck following him. Mickey noticed the driver was “irate” and driving erratically, “like he was chasing him.” Mickey lost sight of the Isuzu but soon heard Monte yell out: “he hit him.” Mickey ran to where he could see what was happening. He saw Michael lying on the ground with defendant standing over him swinging a baseball bat at Michael.

Monte also saw the white Isuzu mini pick-up truck follow Michael into the Hangtown Muffler parking lot. He saw defendant run toward Michael, yell his name, then, with both hands on the bat, swing the bat at Michael’s head. Michael hit the ground and the assailant took one or two more swings at Michael’s head. Defendant then got back in his Isuzu and drove away.

Robert saw the white Isuzu mini pick-up truck follow Michael into the parking lot. He heard the driver yell to Michael: “get the F out of the truck.” He saw Michael turn to look at who was yelling and the driver of the truck hit him in the head with a baseball bat. Michael hit the ground. Robert could not see Michael, who lay on the ground, but he heard the assailant land another swing at Michael’s head. Robert called 911.

Michael’s friends moved him into the cab of his pick-up truck. Sergeant Parker arrived at the scene and tried to talk with Michael but, according to a later report, Michael was “somewhat uncooperative.” He was incoherent and could not remember his name. Michael did tell Sergeant Parker that a neighbor had done this to him and he would handle the issue later.

Michael was taken to the hospital where he was diagnosed with multiple skull fractures and bleeding in several areas of his brain. He could only remember his first name and could not remember his birth date. Michael spent 43 days in the hospital, underwent a craniectomy, and suffered significant neurological damage as a result of the attack.

The Investigation and Charges

Detective James Peterson with the El Dorado County Sheriff’s Department was assigned to investigate the attack on Michael. Detective Peterson contacted Michael’s son to ask if there was anyone upset with Michael. He directed Detective Peterson to a former fiancée, who directed Peterson to Angela Prettyman. Detective Peterson asked Angela if Michael “had a beef” with anyone but she was evasive in her response. The one thing Detective Peterson did know was that a white Isuzu mini pick-up truck was involved, so he asked Angela if she knew anyone who drove such a vehicle. Angela said defendant did.

Accordingly, a couple of days after the attack, Detective Peterson put together a photographic lineup, including a photograph of defendant (the photo was approximately 10 years old). He showed the lineup to Mickey, Monte, and Robert. None of them were able to positively identify Michael’s assailant, though they said some of the photos had “similarities.” Monte described the assailant as clean shaven. Robert thought he had a white mustache and white hair, and possibly a beard.

Detective Peterson met Michael in the hospital approximately one week after the attack. Michael was awake but was difficult to talk to, his speech was slurred and he struggled to maintain focus. Detective Peterson introduced himself and told Michael he was there to talk about “Brett.” Peterson said it was his understanding that “Brett” was the one who hit Michael. Michael responded: “Yeah.” When asked, Michael could not produce defendant’s last name; Detective Peterson asked him if “Brett Reid” sounded right and Michael said that it did. Detective Peterson tried to show the photographic lineup to Michael, but Michael physically could not see the pictures. So, Detective Peterson showed Michael an enlarged photograph of just defendant, hiding any identifying markers, and asked if this was the man Michael knew as “Brett Reid.” Michael said that it was.

Detective Peterson also spoke with Tanya Nielsen. Tanya was dating defendant in 2015. At that time, defendant drove a small white truck. Tanya thought it was either a Mitsubishi or an Isuzu. She knew it was not a Ford, Chevy, or Toyota. Tanya also remembered that defendant carried a bat in his truck. It was at her house at some point, but the last time she saw defendant, he took the bat with him.

Approximately one year later, in April 2016, Detective Peterson put together a new photographic lineup. This time, Detective Peterson used a more recent photograph of defendant - his 2015 booking photo, taken approximately three months after the attack on Michael. Again, none of the witnesses could positively identify the assailant. As before, they all said there were “similarities” in some of the photos.

In May 2016, Detective Peterson met with Michael a second time. Michael told him, without question, it was defendant who attacked him.

In June 2016, the People charged defendant with assault with a deadly weapon. (§ 245, subd. (a)(1).) The People further alleged that in committing that assault, defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) They also alleged defendant previously served a term in prison. (§ 667.5, subd. (b).)

At the preliminary hearing, outside the courtroom, Detective Peterson again spoke to Angela Prettyman. She told him that defendant initially denied any involvement in the attack on Michael. Then, when Angela told Michael that witnesses had seen his truck at the scene of the attack, defendant “vaguely admitted involvement” to her. He told Angela that he and Michael “had had a run-in.”

Just prior to trial, Detective Peterson executed a “show-up” with Monte Osborn. He positioned Monte outside the courtroom, facing the elevator, and told him that an individual would be exiting the elevator. He admonished Monte that he was not insinuating this was the suspect and that Monte was not obligated to identify a suspect. As soon as the elevator doors opened, Monte said, “Yes, that’s -- that’s him.”

Detective Peterson was never able to locate the white Isuzu mini pick-up or the bat used to beat Michael over the head. Detective Peterson’s investigation also revealed that defendant never had an Isuzu pick-up registered in his name.

The Trial

At trial, Michael recounted what he could remember from the day of the attack. He did not remember speaking with either Deputy Bradley or Sergeant Parker that day, though he remembered someone asking him who was his attacker. He said he remembered feeling “in . . . shock” and he did not feel like “talking to anybody or knowing anything.” He did not recall giving any names to anyone, his focus was on the wounds on his head.

Michael’s memory of the first conversation he had with Detective Peterson on April 29, 2015, was muddled. He remembered having a conversation with Detective Peterson while he was in the hospital but, at that time, he was still in a “haze.” He did remember Detective Peterson said he was investigating the attack and asked him if he knew who attacked him. Michael did not remember Detective Peterson raising defendant’s name and he did not remember giving Peterson any names.

Michael had a better memory of his second conversation with Detective Peterson in May 2016. He remembered telling Detective Peterson that he saw defendant walking up in the rearview mirror, then turned around to see him just before he was hit. And, he remembered telling Detective Peterson that he was confident defendant was the person who attacked him.

Michael remained confident in his identification of defendant as the man who attacked him. He knew what defendant looked like, he had just seen defendant at the mini-mart, and he recognized his truck.

Mickey also testified. He acknowledged he had not been able to pick defendant out of the first photographic lineup. He did not believe defendant’s photograph was included in the lineup. But, he said, “He could have been in there. He’s put a lot of weight on.” He also explained defendant had a different haircut. He did recall picking defendant out of the second photographic lineup.[2] At trial, he identified defendant as the man who attacked Michael. He was confident in his identification.

Monte testified he was not able to identify defendant in either of the photographic lineups. He said defendant looked very different than any of the photographs in either of the lineups. If Detective Peterson had included a photograph that depicted defendant as he appeared at trial, Monte was confident he would have identified him. At trial, he positively identified defendant as Michael’s assailant and was confident in the identification.

Robert also testified. He recounted his version of the assault on Michael but said he could not positively identify defendant as the assailant, either in the photographic lineups or in court. He said the assault “was very fast and not in the right circumstance” to allow him to see the assailant.

Defendant’s father and two of his father’s friends testified on defendant’s behalf. Each of them testified that defendant was living in Nevada during the month of April 2015, about two and a half hours away from where Michael was assaulted. According to their testimony, Michael was helping each of them with a construction project on their respective properties. And, while they each remembered seeing him nearly every day in April 2015, none of them could specifically remember spending the entire day with defendant on April 22, 2015.

The jury found defendant guilty of assault with a deadly weapon, and found true the allegation that he personally inflicted great bodily injury on his victim. The trial court sentenced him to an aggregate term of seven years in state prison.

DISCUSSION

Defendant contends there was insufficient evidence to support his assault with a deadly weapon conviction because the evidence failed to establish he was the one who hit Michael with a baseball bat. He argues the evidence was insufficient because “neither the victim nor the eye witnesses to the incident could, before trial, state [defendant] was responsible for the injuries sustained by [Michael].”

Defendant’s argument misapprehends our standard of review. It is not an appellate court’s function to reweigh the evidence. “We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Here, there was substantial evidence defendant was the assailant. The victim positively identified defendant as the assailant when he spoke with Detective Peterson in April 2015 and again in May 2016. At trial, he remained confident in his identification of defendant as his assailant. Monte identified defendant as the assailant in a “show-up” outside the courtroom. And, Monte and Mickey both identified defendant in court as Michael’s assailant. This evidence, individually or cumulatively, was substantial evidence that defendant was the assailant.

DISPOSITION

The judgment is affirmed.

/s/

Blease, J.

We concur:

/s/

Raye, P. J.

/s/

Hull, J.