P. v. Waight

Filed 9/6/07 P. v. Waight CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed.

Denise M. Rudasill, 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, Senior Assistant Attorney General, Pat Zaharopoulos and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant guilty of robbery (Pen. Code, 211)^[1]and assault with a firearm ( 245, subd. (a)(2)). A jury also found true the allegations that defendant personally used a firearm during the commission of the robbery and assault. ( 12022.5, subd. (a), 12022.53, subd. (b).) The court sentenced defendant to 13 years in state prison. Defendant makes four contentions. First, the trial court abused its discretion by excluding third party culpability evidence. Second, the court excluded evidence of the detectives decision to use a photographic lineup rather than a live lineup, which was also an abuse of discretion. Third, there is a lack of substantial evidence to support the finding that defendant personally used a firearm. ( 12022.5, subd. (a), 12022.53, subd. (b).) Fourth, there is insufficient evidence to establish that defendant committed assault with a firearm. ( 245, subd. (a)(2).) We disagree with all of defendants arguments and affirm.

FACTS

At trial, the People presented testimony of the victim, two of the victims neighbors, and three members of the sheriffs department, all of whom related similar facts. On December 16, 2004, the victim was outside his home, installing a fence, when he saw four men walking down the road toward his property. One of the men, later identified as Michael Dent, asked the victim, Whats up, dude, whats up? The victim ignored the men and they continued walking.

All four men then jumped over the victims neighbors fence and walked toward the victim. Three of the men stopped approximately 35 feet away from the victim. The fourth man, whom the victim identified as defendant, came within three to four feet of the victim and asked for directions. The victim gave defendant directions, while observing that defendant had a gap between his top teeth and a false tooth.

While the victim was turned away, defendant held a gun approximately one inch from the victims temple. The victim turned and saw the gun; defendant then demanded the victim give him money. The victim denied having any money, at which point one of the three remaining men walked toward defendant and the victim, and demanded defendant give him the gun. When defendant and the second man both had their hands on the gun, the victim handed defendant the money from his wallet because the second man threatened to kill the victim if he did not give them his money.

Defendant then stood to the side of the second man, who demanded the victims cell phone, wallet, and car keys. The victim did not comply and the second man demanded the victim lie on the ground. The victim then ran away. The second man shot at the victim, but missed. The four men then ran after the victim and fired two more shots, missing the victim. When the victim stopped running, he turned around and saw the four men running in the opposite direction.

The victim began chasing after the four men and yelling for help. The victim came in contact with his neighbor and told him to [c]all the police. The neighbor called the sheriff, but no one answered, so the victims neighbor retrieved his gun and the two began running after the four men. The victim and his neighbor caught Michael Dent, but the other three men were approximately 500 feet away. They asked Mr. Dent for his name and why he was in the area, and then searched him for the gun and stolen money, but found neither. The victim tried to call the sheriff a few more times, but there was no answer, so the victim and his neighbor let Mr. Dent leave.

Later that day or the next day, the victim was able to contact the sheriff. The sheriff took Michael Dent into custody and interviewed him about the crime and the other individuals involved. On January 18, 2005, defendant was taken into custody. That same day, Detective Gorham took defendants photograph to be used in a photographic lineup. On January 19, 2005, Community Service Officer Peterson went to the victims home and showed him a photographic lineup of six men. At trial, the victim identified No. 2 as the person that he picked out of the photographic lineup and then identified that person as defendant. Officer Peterson testified that when the victim identified No. 2, he stated that he thought No. 2 was the person who took the gun away. The victim put the date and his initials on the back of the photographic lineup, as well as a question mark because he thought the person in the No. 6 position also looked familiar.

DISCUSSION

A. Third Party Culpability Evidence

Defendant contends the trial court abused its discretion by excluding, as irrelevant, evidence that two other people pled guilty to taking part in the robbery.

We review the trial courts decision to exclude evidence for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) We examine the courts finding to determine whether the evidence is indeed irrelevant. (Ibid.) Evidence of third party culpability is admissible if it is capable of raising a reasonable doubt of defendants guilt. (People v. Hall (1986) 41 Cal.3d 826, 833.)

Defendants trial counsel attempted to question Detective Gorham about the guilty pleas of two other people involved in the robbery. The People objected on the basis of relevance and the court sustained the objection. Later, defendants trial counsel again raised the issue of entering into evidence the guilty pleas of the other two men. The court affirmed its earlier ruling that the evidence was irrelevant because the fact that two people pled guilty did not raise reasonable doubt as to defendants guilt, since it was undisputed that four people took part in the crime.

Defendant failed at trial, and still fails, to explain how the guilty pleas of two other people involved in the robbery raises a reasonable doubt as to his own guilt. It is noted in the record that one of the defendants pled guilty to second degree felony robbery ( 211), and the second defendant pled guilty to robbery ( 211) while personally armed with a firearm ( 12022, subd. (a)(1)). Since the facts of the case implicate four people robbing the victim and two people holding a firearm during the robbery, we do not see how evidence regarding the pleas of these two other defendants would be relevant to creating reasonable doubt as to defendants guilt. Accordingly, we find no abuse of discretion.

B. Photographic Lineup

Defendant contends the court abused its discretion by excluding, as irrelevant, testimony regarding the decision to use a photographic lineup rather than a live lineup. Defendant contends the evidence is relevant because it tends to show the victims identification of defendant was not accurate because the photographic lineup did not reveal the height and weight of the individuals in the photographs.

We review a courts decision regarding the admissibility of evidence for an abuse of discretion. (People v. Alvarez, supra, 14 Cal.4th at p. 201.) We examine the courts finding to determine whether the evidence is irrelevant. (Ibid.) Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence . . . . (People v. Kennedy (2005) 36 Cal.4th 595, 615; see also Evid. Code, 210.)

At trial, defendants counsel offered that if Detective Gorham were examined about his decision to employ a photographic lineup rather than a live lineup, he would testify that a live lineup could have been conducted. Further, defendants trial counsel argued the testimony would be relevant to prove the identification of defendant could have been more accurate. The superior court determined that evidence regarding the decision not to conduct a live lineup was irrelevant, but did allow defendants trial counsel to argue that the photographic lineup did not contain information regarding the individuals heights and weights, as well as the deficiencies of identifying a person from a small photograph.

The court did not abuse its discretion in finding the evidence to be irrelevant. The proposed examination of the detectives decision would merely prove to illustrate the detectives thought process; it would not reasonably tend to prove or disprove the accuracy of identifying a suspect via a photographic lineup.

C. There Is Substantial Evidence to Prove Defendant Used a Firearm and Committed Assault with a Deadly Weapon

We address defendants third and fourth contentions simultaneously because the arguments are interrelated. Defendants third contention is that there is a lack of substantial evidence to prove that he personally used a firearm. ( 12022.5, subd. (a), 12022.53, subd. (b).) Defendants final contention is that the evidence is insufficient to support the finding that he committed assault with a firearm. ( 245, subd. (a)(2).)

In reviewing a claim that a criminal conviction is not supported by sufficient evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence which is reasonable, credible, and of solid value-- from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume in support of the judgment the existence of every fact the [jury] could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. Resolving conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . . (People v. Young (2005) 34 Cal.4th 1149, 1181.)

The victim testified that defendant held a gun to his head while demanding money. Defendant contends that it would be improbable for the victim to accurately identify defendant as the person that held the gun to his head, due to only viewing the perpetrators for several minutes in an extremely stressful situation. To support this theory, defendant highlights the inconsistencies in the victims description of defendant, for example: (1) defendant did not have a gap in his teeth at trial; and (2) when the victim picked defendant out of the photographic lineup, he stated that defendant was the second man to hold the gun; at trial, the victim stated defendant was the first man to hold the gun.

The issues regarding defendants physical features at trial not exactly matching the victims description are easily resolved by considering the 14-month delay between the date of the crime and the start of defendants trial. The jury could reasonably have attributed the difference in defendants teeth to any number of intervening causes during the 14-month period.

In regard to the victims initial statement that defendant was the person who took the gun away and pointed it at him, rather than the person who originally held the gun to his head, we do not resolve conflicts and inconsistencies in the victims testimony, which is exclusively within the jurys power. These inconsistencies do not make an accurate identification of defendant by the victim impossible or improbable, in light of the victims opportunity to observe defendant while defendant approached the victim and while the victim gave him directions. The victims testimony substantially supports the jurys guilty verdict as to the assault with a firearm charge and the true findings in regard to the allegations of personally using a firearm.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

GAUT

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.