Filed 2/1/18 P. v. Wilson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

TENECA LOUISE WILSON,

Defendant and Appellant.
B277255

(Los Angeles County
Super. Ct. No. VA138164)

APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury found defendant and appellant Teneca Louise Wilson guilty of, among other things, theft by trick from an elder. On appeal, Wilson contends that there was insufficient evidence to support her conviction of that crime and that the trial court abused its discretion by denying her Romero motion. We reject these contentions and affirm the judgment.
BACKGROUND
I. Factual background
Wilson was charged with crimes arising out of two incidents, the first occurring on December 19, 2014 and the second on January 22, 2015, involving two victims, Eleanor Blasi and Michiko High, respectively, and what is known as a pigeon drop or money found scam.
A. December 19, 2014: The Blasi incident
In December 2014, Blasi was 89. On December 19, 2014, she was in a Ralphs parking lot in Encino. Blasi had just parked her car when a red SUV driven by a “Black lady,” whom Blasi identified at trial as Wilson, parked in front of her. At some point, Wilson said her name was Ara, Arian or Ariana. Another woman, Margaret Souza, whom Blasi also identified at trial, asked Blasi for help with a “pouch” she’d found. Souza told Blasi her name was Tracy. When Blasi suggested that Souza take it into the Ralphs or to the police, Souza said she did not want them to think she’d taken it.
Souza then said she worked at the Encino Law Center for a “Mr. Silverman” and would call him for advice. Souza supposedly called “Mr. Silverman,” who, she claimed, directed her to open the pouch. Inside the pouch was a note signed by “Art” that supposedly said, “Sam, here is your money. The police have been paid off and I’ll see you later or I’ll call you later.” Souza said that the pouch contained over $100,000, which she surmised was drug money. Saying that Blasi had to be a witness, Souza and Wilson “took” Blasi into the SUV. Blasi did not have time to get her walking cane, phone or water.
Wilson drove them to Chase Bank on Ventura Boulevard, allegedly to see “Mr. Silverman” and to see if Souza could keep the money. En route, Souza said the money would help pay for repairs to her Mercedes. When they arrived at Chase Bank, which was next to the Encino Law Center, Souza went into the bank. When Souza came out, she told Blasi they needed to return on Monday. When Blasi refused, Souza said that if Blasi gave Souza $20,000, then Souza would pay Blasi back plus interest when Souza got the money from the pouch. Blasi said she didn’t have $20,000, but Souza was insistent, causing Blasi to panic. Believing that something would happen to her if she didn’t give the money, Blasi finally agreed to give $15,000 to Souza. Either Wilson or Souza said this would be “a long day” if Blasi did not give them the money.
Wilson then drove them to a Bank of America which had a Merrill Lynch, where Blasi said she had an account. Souza took Blasi by the arm into the bank, leaving bruises, although Blasi bruised easily. At the bank, teller Dennis Samade transferred $10,000 into Blasi’s checking account. Blasi did not want to have the money transferred, but she felt she couldn’t ask Samade for help. At trial, Samade testified that Blasi was “jittery,” but he had previously told a detective that Blasi was calm and never mentioned she was in distress. Because the line to access Blasi’s checking account was too long, Blasi and Souza left. Wilson asked Souza, “ ‘Did she get it?’ ” Souza replied, “ ‘Not yet,’ ” which scared Blasi.
Wilson drove them to a Bank of America in Sherman Oaks. Souza accompanied Blasi inside, and Blasi withdrew $10,000 in cash, which was placed in an envelope. Blasi didn’t ask the teller for help because the teller was a young girl. Wilson drove them back to Chase Bank. Blasi got out of the car, intending to go inside the bank for help. Blasi had her hand on the envelope but Souza “yanked” it from Blasi’s hand or purse. Souza and Wilson left. When a young man asked Blasi if she needed help, she asked if there was anybody at the bank or Encino Law Center named “Mr. Silverman.” He told her there was nobody there by that name. Blasi then managed to get a bus back to Ralphs.
Two days later, Blasi told her daughter what had happened, and her daughter called the police. Blasi wasn’t well, but she tried her best to tell the officers what she remembered. Three days after the incident, Blasi had a stroke and went to the hospital.
In March 2015, Blasi identified Wilson from a photographic six-pack. Blasi wrote that “Ariana in red SUV drove me to the Chase bank – She said she worked for a towing company and she had a serious boyfriend.” Blasi was unable to identify Souza, although Samade, the Merrill Lynch teller, identified Souza. One week before trial, Detective Richard Kent saw Wilson leave the police station in a reddish Dodge Nitro with paper plates on the front.
B. January 22, 2015: The High incident
In January 2015, High was 83. On January 22, 2015, she was at the Trader Joe’s parking lot in Cerritos. The woman next to her appeared to be having car trouble. The woman took High to a second woman who said she needed $10,000 to show her boss. High said she could help.
The women drove High to the bank in a red car. At the bank, High withdrew $10,000. High and the women then drove to U.S. Bank to take out another $10,000 or similar sum. However, the teller, Genya Lourenco, knew High and thought she seemed “fragile.” Lourenco’s suspicions were further roused when High asked to withdraw $10,000 because of the unusually large amount. Lourenco told High to write on a piece of paper if she was scared. High wrote, “ ‘two ladies in a red car in front.’ ” Lourenco alerted her manager, and the police were called.
Deputy sheriffs detained Souza and Wilson, who were in a red Dodge Nitro SUV with paper plates. Souza wore a wig. In the car were stacks of $1 bills sandwiched between $100 bills. High identified Souza and Wilson at a field showup.
C. Defense case
On December 21, 2015, Los Angeles Police Officer Amy Dineen spoke to Blasi, who said a White woman drove her from Ralphs in a black Mercedes. A Black woman drove separately in a red SUV. When they were at Chase Bank, the Black woman said she had to go to work and left. Blasi was then driven in the Mercedes to a Merrill Lynch on Ventura Boulevard, where she withdrew the money. After withdrawing the money, Blasi was driven back to the Chase Bank. When Blasi refused to give the White woman money, the woman shoved Blasi out of the car and threw out Blasi’s purse after removing the money.
Ryan Mceachern, a teller at Chase Bank, testified that he saw Blasi going in and out of the bank. Blasi told him that she had given money to a friend who was going to invest it for Blasi. Blasi did not mention anything about being robbed.
Dr. Mitchell Eisen testified about how eyewitness memory works and factors that may negatively impact it. Memory, for example, can be impacted by the passage of time, “reconstructed” with new information and mistakes, and inhibited by the distraction of a traumatic event and age. Memory can also be subject to suggestability from outside sources. Eyewitness evidence can be contaminated if, for example, the person administering a lineup knows the suspect’s identity. An accurate identification is made quickly, in 20 to 25 seconds, while identifications made outside of a half-minute indicate that the person doesn’t have a strong recognition for any face. When recognition is weak, a person may instead make a “relative judgment” by comparing photos to see which is best relative to the others.
II. Procedural background
Based on the events of December 19, 2014 and January 22, 2015, an amended information was filed against Wilson alleging the following: count 1, attempted theft from an elder or dependent adult (High) (Pen. Code, §§ 664, 368, subd. (d)); count 2, attempted grand theft of personal property (High) (§§ 664, 487, subd. (a)); count 3, conspiracy to commit a crime (High) (§ 182, subd. (a)(1)); count 4, second degree robbery (Blasi) (§ 211); and count 6, theft from an elder or dependent adult (Blasi) (§ 368, subd. (d)). The information also alleged that Wilson had a prior conviction for robbery within the meaning of the Three Strikes law.
The matter proceeded to a jury trial. After the People rested, the trial court granted a motion of acquittal under section 1118.1 as to counts 3 and 4. On August 15, 2016, the jury found Wilson guilty of counts 1, 2 and 6. At her August 26, 2016 sentencing hearing, Wilson admitted she had a prior robbery conviction, which the court then refused to strike. The court sentenced Wilson to six years six months, calculated as follows: the midterm of three years doubled to six years based on the strike as to count 6, plus a consecutive six months as to count 1. The court dismissed count 2 as a necessarily lesser included offense to count 1.
DISCUSSION
I. Sufficiency of the evidence of count 6
Wilson argues that there was insufficient evidence to support her conviction of grand theft by trick because, first, the evidence was that Blasi did not consent to give the money to defendants, and, second, Blasi’s identification of Wilson was unreliable.
A. Standard of review
When determining whether the evidence was sufficient to sustain a criminal conviction, “ ‘ “we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.]’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) “ ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357; see also Jackson v. Virginia (1979) 443 U.S. 307.) Testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to establish a fact and support a conviction. (People v. Allen (1985) 165 Cal.App.3d 616, 623 (Allen); Evid. Code, § 411.)
B. Sufficiency of the evidence to support the consent element of theft by trick
The prosecutor had two theories of the case: (1) defendants robbed Blasi or (2) defendants committed theft by trick. The trial court granted a motion of acquittal as to the count related to the first theory based on its conclusion there was insufficient evidence of force or fear to support robbery. Wilson now contends there was insufficient evidence to support the second theory. We disagree.
The elements of theft by trick are (1) defendant obtained property she knew someone else owned, (2) the property owner consented to defendant’s possession—but not title—of the property because defendant used fraud or deceit, (3) when defendant obtained the property, she intended to deprive the owner of it permanently, (4) defendant kept the property for any length of time, and (5) the owner did not intend to transfer ownership of the property. (People v. Frederick (2006) 142 Cal.App.4th 400, 417; People v. Traster (2003) 111 Cal.App.4th 1377, 1390.) Hence, theft by trick requires that the owner consent to giving possession of the property to the defendant.
Here, Wilson argues that the evidence shows only that Blasi did not consent to give her money to Wilson and Souza. Stated otherwise, Blasi was not tricked into giving the money to defendants; she knew “something was up” but Souza grabbed the money from Blasi without Blasi’s consent. There was evidence to support this version of events. Blasi said she became suspicious at Merrill Lynch and, en route to the second Bank of America, she began to think she was being robbed. When Blasi arrived at the bank, she intended to hold onto the money, but Souza took it.
Notwithstanding this evidence, there was sufficient evidence of the prosecution’s second theory of the case, that defendants tricked Blasi into giving money to them. Blasi, for example, believed that Souza had found drug money. Indeed, Blasi testified at trial that she never realized it was not drug money. Souza told Blasi that Souza would be able to keep the alleged drug money if Blasi gave $20,000 to defendants, apparently as some sort of collateral, and then Souza would pay Blasi back with interest. Blasi’s failure to ask either Samade or the young female teller for help also tended to show that Blasi did not know she was being tricked. Even after Souza took the money, Blasi asked whether “Mr. Silverman” worked at the bank or the Encino Law Center, which also shows she did not know she was the victim of a scam until after the money had been taken. Further evidencing her ignorance she had been duped, Blasi waited for two days after the incident occurred to report it to the police, doing so only at her daughter’s insistence. And, although Wilson makes much of Blasi’s testimony that Souza grabbed the money from Blasi’s purse, that does not negate consent. Blasi could have intended to give the money to Souza, but Souza simply grabbed it before Blasi could hand it over. Finally, Blasi said at trial that at some point she started to panic and became scared, but she also said that defendants did not use force or fear, make threats or display weapons. This evidence was more than sufficient to support the jury’s conclusion that Blasi consented to give the money to defendants.
Moreover, the jury was entitled to accept some parts of Blasi’s testimony and discount other parts of it and to resolve conflicts in the evidence in favor of guilt. (People v. Zamudio, supra, 43 Cal.4th at p. 357.) The jury was so instructed. (CALCRIM No. 226.) The jury thus could have believed that Blasi was duped but was trying to minimize her gullibility. As she said at trial, she was “very embarrassed” and should have known better at her age than to get into a car with two strangers. We therefore reject Wilson’s contention that there was insufficient evidence of the consent element of theft by trick.
C. Sufficiency of the evidence to support the identification of Wilson
We similarly reject Wilson’s second contention, that Blasi’s identification of Wilson was so unreliable as to render it insufficient. Rather, Blasi identified Wilson from a photographic six-pack in March 2015 and at trial. This evidence was more than sufficient to establish that Wilson was one of the perpetrators of the crime. (See generally Allen, supra, 165 Cal.App.3d at p. 623.)
Wilson fails to establish that Blasi’s identification was physically impossible or inherently improbable. (See generally Allen, supra, 165 Cal.App.3d at p. 623.) There were, undoubtedly, discrepancies in Blasi’s story about what happened. Blasi told officers, for example, that she was in a black Mercedes; however, bank surveillance video showed Blasi getting out of a red SUV. She also told officers that she withdrew the $10,000 from a Bank of America in Encino; however, she withdrew it from the Bank of America in Sherman Oaks. To the police and her niece, Blasi said that Wilson left while they were at the first bank; at the preliminary hearing and trial Blasi said that Wilson remained with her the entire time. Wilson cites other evidence casting doubt on Blasi’s identification; for example, Blasi did not identify Wilson from the photographic six-pack until after Wilson’s photo had been released to the public. Also, there was no dispute that the aged and ailing Blasi had memory issues. Further, Dr. Eisen testified about how certain aspects of identifications like Blasi’s might render it unreliable: for example, the length of time it took her to recognize Wilson in the six-pack, Blasi’s age, and the variations in the stories Blasi gave to the police, to her niece and at trial.
However, these discrepancies or conflicts in the evidence do not amount to an impossibility or inherent improbability that Wilson was the woman with Souza. These conflicts were fully fleshed out in cross-examination and Dr. Eisen’s testimony, and any conflicts in the evidence were for the jury to resolve. (Allen, supra, 165 Cal.App.3d at p. 623 [weaknesses and inconsistencies in eyewitness testimony are matters solely for jury to evaluate].) Wilson’s argument thus amounts to nothing more than an improper request that we reweigh the evidence and evaluate the credibility of witnesses in violation of the standard of review.
II. Denial of the Romero motion and of probation
Wilson contends that the trial court abused its discretion by denying her Romero motion and request for probation. We disagree.
A defendant like Wilson who has a prior strike for robbery is presumptively ineligible for probation. (§ 667, subd. (c)(2).) However, in the furtherance of justice, a trial court may strike or dismiss a prior conviction. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) We review a court’s ruling on a Romero motion under the deferential abuse of discretion standard; that is, the defendant must show that the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 375, 378.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 378.) The Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Ibid.) Only extraordinary circumstances justify finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, “the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
When considering whether to strike a prior conviction, the factors a court considers are “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Here, the particulars of Wilson’s prior strike and other criminal background support a conclusion that she is not outside the spirit of the Three Strikes law. Wilson’s prior strike (a juvenile adjudication for robbery) was old, having been incurred in 2000 when Wilson was 17. However, she also had a sustained juvenile petition in 2001 for taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)) and a 2003 conviction of misdemeanor forgery (§ 476). These prior crimes, when considered with Wilson’s current crimes, show that her thievery has graduated to elaborate schemes targeting the vulnerable elderly. Given these circumstances, we cannot say that the trial court abused its discretion by refusing to strike the prior conviction.
Nor are we persuaded that the trial court failed to consider Wilson’s representation that she could make restitution and was caring for her dying sister’s children. A trial court may minimize or even entirely disregard mitigating factors, without stating its reasons. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.) Indeed, a trial court need not explain its reasons for declining to strike a prior at all. (In re Large (2007) 41 Cal.4th 538, 550.)
Finally, we reject Wilson’s related claim that her sentence of six years six months penalized her for going forward with trial, because it was longer than a pretrial offer of four years. (In re Lewallen (1979) 23 Cal.3d 274, 278-279.) There is no showing that the court penalized Wilson for exercising her right to trial.
DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




DHANIDINA, J.


We concur:




EDMON, P. J.




LAVIN, J.