P. v. Sanchez

Filed 3/28/07 P. v. Sanchez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury found defendant Ramon Sanchez guilty on one count of auto theft and one count of evading a peace officer by reckless driving, based on testimony of a police officer who was one hundred percent sure that defendant was the individual he saw driving a stolen Honda Accord. On appeal, defendant argues that the circumstances surrounding the identification are such that [the officers] identification is unreliable as a matter of law and cannot support a conviction. Defendants dispute with the officers testimony, however, presents only an issue of credibility, which under well‑settled law is within the sole province of the trier of fact and cannot (with few exceptions not applicable here) be raised on appeal. (People v. Fleming (1961) 191 Cal.App.2d 163, 169-170.) We reject defendants claim, conclude that the jurys verdict is supported by substantial evidence, and affirm.

I. Background

On October 16, 2004 at approximately 3:00 p.m., Toby Miller parked his green Honda Accord in his driveway in Pacheco, and last saw the car in the driveway at approximately 11:00 p.m. that evening. When Miller went outside at some point after midnight, he discovered the car was missing, which he immediately reported to the authorities.

On October 18, 2004 at approximately 10:50 p.m., Concord Police Officer Greg Mahan was on duty in a marked police car when he spotted a green Honda Accord in the area of Virginia Lane and Monument Boulevard in Concord. He ran the rear license plate number through dispatch and learned that the plate had been reported as lost or stolen. However, before he could initiate a traffic stop, he lost sight of the car. Officer Mahan then put out a radio call containing a general description of the car and indicating that it was believed to be stolen.

Concord Police Officer Joshua Graham was patrolling in the general vicinity when he heard Officer Mahans report of a possible stolen vehicle. Soon thereafter, as he was traveling southbound on Meadow Lane, he spotted a green Honda traveling towards him on the same street. According to Officer Graham, the area was illuminated by several lights at a nearby shopping center as well as street lights in the area. As the cars passed each other, the driver of the Honda looked at Officer Graham, who got a quick look at the driver and also saw that there were multiple occupants in the car. Because the car matched the description provided by Officer Mahan, Officer Graham made a U-turn to follow the Honda, which then quickly turned off Meadow Lane into an apartment complex parking lot.

Officer Graham followed the car into the lot, briefly losing sight of it before locating it again, and confirming that its rear license plate number matched that broadcast by Officer Mahan. The Honda accelerated through the parking lot, which had no other exit, and backed into a parking stall at the rear of the lot. Officer Graham stopped his police car in front of the Honda, focusing his attention on the driver because the drivers door began to open and he believed the driver was going to flee on foot. For about five seconds and from maybe 15 feet away, Officer Graham got a good look at the driver, who was wearing a dark‑colored t-shirt. According to Officer Graham, the parking lot was illuminated by ambient light from a very well lit shopping center nearby. There were also lights under the overhang in the parking lot and light coming from various apartment buildings nearby, and the officers headlights were shining on the vehicle. Officer Graham testified that given the ample lighting, he could clearly see [defendants] face.

As the drivers door on the Honda began to open, Officer Graham began to open his car door, but the drivers door on the Honda shut suddenly, and the car pulled away from him. All the while, the officer had remained focused on the driver, and their eyes met as the Honda pulled passed the officer and left the parking lot. When Officer Graham drove out of the parking lot, he was unable to see the Honda and ultimately dropped out of the chase. He subsequently radioed in a description of the driver, whom he described as a white male, with dark hair and scruffy facial hair wearing a dark colored t-shirt.

Officer Mahan then regained sight of the Honda, which was being pursued by another police unit. Joining in the chase, he estimated that the Honda was traveling at 50 to 60 miles an hour, as a conservative estimate, and even pushing closer to 70 miles an hour in a 35‑mile per hour zone. At one point, the Honda sped through a red light maybe at 55, 60 miles an hour without ever slowing, nearly colliding with a police car, which then joined the chase.

The Honda then sped up an on-ramp and onto Highway 242 with three police cars in pursuit. Because Officer Mahan was the third unit, he terminated his pursuit of the Honda in compliance with department policy limiting pursuits to two police units in the absence of extenuating circumstances.

Concord Police Officer Steve Harn spotted the Honda Accord after it had exited Highway 242 and was speeding through the surface streets. When he eventually caught up to the car, he found it abandoned with the engine running and its doors open. Upon removing the key from the ignition, Officer Harn discovered it was a shaved key with its edges filed down. He also determined that, while the front license plate belonged to the Honda, the rear license plate belonged to another car, having been stolen that same month from a different Honda Accord. The Honda and rear license plate were processed for fingerprints, but none were found. Officers detained defendant one block away from where the Honda was abandoned.

After receiving word that a suspect had been detained, Officer Graham traveled to the scene of detention, where he immediately identified defendant as the driver of the Honda. At trial, Officer Graham testified he was a hundred percent sure that defendant was the driver. He also testified he recognized the shirt defendant was wearing at the time he was detained as the shirt worn by the driver.

Defendant was arrested and charged with one count of unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) (count one) and one count of evading a peace officer by reckless driving in violation of Vehicle Code section 2800.2, subdivision (a) (count two) A jury found him guilty on both counts.[1]

On July 22, 2005, defendant was sentenced to the upper term of three years on count one and the midterm of two years on count two to run concurrent to count one, for an aggregate term of three years in state prison. He was also ordered to make certain payments, including restitution to Toby Miller in the amount of $2,469.50.

This timely appeal followed.

II. Discussion

Defendant presents one straight-forward argument on appeal. He contends that the circumstances surrounding Officer Grahams identification are not sufficiently reliable as to justify a conviction under the reasonable doubt standard of proof. For the reasons detailed below, we disagree.

We begin with the standard of review by which we are to evaluate defendants claim that his conviction is not supported by substantial evidence. In People v. Johnson (1980) 26 Cal.3d 557, the California Supreme Court took the opportunity to define the California standard in light of the United States Supreme Courts decision in Jackson v. Virginia (1979) 443 U.S. 307. As our Supreme Court explained, the court in Jacksonheld that the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . [is] to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. . . . [T]his inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.  [Citation omitted.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Johnson, supra, 26 Cal.3d at p. 576, quoting Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) Noting that California decisions state an identical standard, (Johnson, supra, 26 Cal.3d at p. 576), the court then reiterated that standard: the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 578.) With these principles in mind, we turn to the record here.

As quoted above, Officer Graham testified at trial that he was one hundred percent sure defendant was the driver of the stolen Honda. Such certainty was supported by the record here.

As detailed above, Officer Graham first got a look at the driver as the Honda passed the officer on Meadow Lane. That area was illuminated by lights from a nearby shopping center as well as the street lights. After Officer Graham followed the Honda into the apartment complex parking lot, the officer got a good look at the drivers face for about five seconds at distance of an estimated 15 feet. His view of the driver was unobstructed, and he indicated that the lighting in the parking lot was ample, with ambient light from the nearby shopping center, lights under the nearby overhangs, and the headlights of his police car. Officer Grahams attention was focused on the driver to ascertain whether he intended to flee the scene on foot, and he continued to watch the driver as the Honda circumvented the officer and left the parking lot. When Officer Graham radioed in a description of the driver, he described him as dark haired with scruffy facial hair and wearing a dark colored t-shirta description defendant does not dispute.

Despite this abundance of circumstances demonstrating the dependability of Officer Grahams identification, defendant argues that the identification was unreliable as a matter of law, pointing to what he asserts were multiple deficiencies in the officers in-field identification. Most importantly, defendant takes exception with what he calls a police officer full of hubris and certain of his powers to make an accurate identificationafter all, according to him he was never wrong. From there, defendant argues that a pope may claim infallibility but only under limited circumstances. Police officers enjoy no such privilege. [2] We are not persuaded.

First, we find it ironic that defendant questions Officer Grahams identification as being too certain, as we surmise that if the officer had been equivocal in his identification, defendant would no doubt be arguing that the officers identification was unreliable for lack of certainty.

More significantly, this Division long ago recognized in People v. Fleming, supra, 191 Cal.App.2d 163, 169-170 that [i]t is hornbook law that the credibility of witnesses is the exclusive province of the trier of fact. Furthermore, to warrant the rejection of the testimony of a witness who has been believed by the trial court there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. (Accord In re Daniel G. (2004) 120 Cal.App.4th 824, 830 [The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of factchooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions.].) Any contradictions . . . or other weakness in the witnesss testimony are matters to be explored on cross‑examination and argued to the trier of fact. (People v. Robertson (1989) 48 Cal.3d 18, 44.) The record here does not suggest that Officer Grahams testimony [was] physically impossible or its falsity [was] apparent without resorting to inferences or deductions. (In re Daniel G., supra, 120 Cal.App.4th at p. 830.) Accordingly, we defer, as we must, to the jurys assessment of his credibility.

While the remaining discrepancies claimed by defendant likewise go to the issue of Officer Grahams credibility and are therefore addressed by the authorities referenced above, we nevertheless discuss them in turn. Defendant cites as a discrepancy that Graham was unable (or unwilling) to identify any of the persons stopped with [defendant] as being the passengers. As we understand this assertion, defendant appears to suggest that there were other individuals stopped or detained along with defendant near the location of the abandoned Honda, but that Officer Graham was unable to identify them as the passengers he saw in the Honda. However, Officer Graham testified that while other suspects, possibly a female and a male, were seen running in the area of the abandoned car, those two people were never detained. Alternatively, if defendants reference to the persons stopped with [defendant] means the passengers in the car when it was briefly stopped in the apartment complex parking lot, Officer Graham explained that he could not provide a description of the passengers because his attention was focused on the driver. Neither interpretation gains defendant any ground as they simply fail to undermine the reliability of the officers identification.

Defendant also challenges the officers incorrect description of defendant as a white male, when defendant is in fact Hispanic. At trial, however, Officer Graham described defendant as light skinned. We do not perceive this discrepancy to be significant.

Next, defendant contends the identification of defendant as the driver cannot be trusted because Officer Graham did not describe the driver as missing a significant portion of his left ear, as is defendant. He makes particular note of the fact that defendants misshapen ear is the ear that would have been closest to the drivers side window. However, Officer Graham explained that he observed the driver straight on, not through the side window, where the ear would have been more visible. Additionally, the officer testified, I focused on the eyes. Eyes aremakes itis a good thing to identify later. Facial features. Shape of the face. So I wasI was basically watching the front of his face and also, you know, trying to figure out if he was planning on running or driving away. Quite simply, the fact that the officer did not notice one characteristic of defendant while accurately observing numerous other characteristics hardly renders his identification unreliable.

Finally, defendant challenges the absence of forensic evidence linking him to the Honda. This argument ignores the fact that under California law the testimony of a single witness is sufficient to establish a fact. (Evid. Code, 411; accord, People v. Allen (1985) 165 Cal.App.3d 616, 623 [absent physical impossibility or inherent improbability, the testimony of a single eyewitness is sufficient to support a single criminal conviction.].) Forensic evidence was therefore unnecessary. Defendant maintains that it is shocking the items found in the car, such as cigarette butts and fast food containers, were not tested for fingerprints or DNA, arguing that while the prosecutions forensic expert explained that this was not protocol, it would have cemented the prosecutions case. The prosecution did not need forensic evidence to cement its case: Officer Grahams unequivocal identification of defendant as the driver of the stolen Honda did that for them.

In sum, all issues raised by defendant are concerned solely with the credibility of Officer Grahams testimony. The jury obviously determined that his testimony was reliable, and provided substantial evidence that defendant was guilty beyond a reasonable doubt.

III. Disposition

The abstract of judgment is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

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[1] Defendant notes that [d]uring the course of jury selection, [he] made a Batson/Wheeler [Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258] motion, which the court denied. He then states, [Defendant] reviewed the supplemental Clerks Transcript of the voir dire and has elected not to raise any issues regarding jury selection. This court is, however, invited to review the transcripts themselves and ascertain whether or not any issues regarding jury selection should be raised.

As defendants request is devoid of any authority, we could easily decline his invitation. Despite that, we have read the record and conclude that the claim, addressed to Juror No. 4 and Juror No. 9, has no merit. To begin with, it was not clear that Juror No. 9 was a member of a cognizable class. After defense counsel admitted that Juror No. 9 did not have a Spanish surname, the court replied that it did not know whether he is or notI cant tell by appearances. In any event, after concluding that an inference has been raised, the court accepted the prosecutors explanations, finding them race‑neutral, indeed, going on to embellish why Juror No. 4 would not be an acceptable juror. There was no Batson-Wheeler error.

[2] We note with displeasure defendants accusation, unsupported by anything, that Officer Grahams hubris has probably resulted in the wrongful conviction of innocent people.