P. v. Lopez

Filed 9/28/06 P. v. Lopez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Juan E. Lopez appeals a judgment after conviction of unlawfully driving or taking a vehicle, receiving stolen property, carjacking with a finding of personal firearm use, and two counts of second degree robbery. (Veh. Code, § 10851, subd. (a); Pen. Code, §§ 496, subd. (a),^[1] 215, subd. (a), 12022.53, subd. (b), & 211.) We affirm.

FACTS AND PROCEDURAL HISTORY

Rojas Carjacking

During the late evening of April 8, 2004, Jessica Rojas and her cousin Maira drove to a bar near the intersection of Portia Street and Sunset Boulevard in Los Angeles. Jessica drove her boyfriend's 2004 Scion automobile, and parked it at a closed gasoline station. Although it was dark, nearby street lights illuminated the street.

As Jessica opened the door, Lopez approached her and blocked its closing. He stood approximately five to six feet from Jessica, pointed a gun at her, and demanded the automobile. Jessica spoke to Lopez in Spanish, pleading with him not to take it. Lopez responded in profanities and demanded the keys.

At Maira's suggestion, Jessica gave Lopez her keys. He entered the automobile, but could not select the ignition key. Lopez pointed the gun at Jessica and ordered her to start the automobile. She leaned inside the automobile and started it while Lopez pointed the gun toward her face. He then drove away. When the automobile's interior light was on, Jessica saw Lopez's face and mustache. He was wearing a knit cap and gloves. Jessica later informed police officers that the carjacker weighed approximately 150 pounds, and was between 5'7" and 5'9" tall.

The automobile contained several compact disc recordings of popular musicians that were not labeled or marked as belonging to Jessica. When Jessica saw the impounded automobile a week later, it had been "completely destroyed" inside and the compact discs were missing. A highway patrol officer had discovered the stripped automobile in a parking lot near the freeway.

Approximately one month later, police officers presented Jessica with a black-and-white photographic lineup. She identified Lopez's photograph as "pretty close to the man that held [her] up at gunpoint and stole [her] car." Jessica was "pretty sure" of her identification. She also identified Lopez at the preliminary hearing as "resembl[ing] [the carjacker] a lot," and identified him again at trial. Jessica noted that his appearance had changed at trial because he now had longer hair, no facial hair, and was heavier.

Jessica's father was a gun collector and she was familiar with guns. The prosecutor showed Jessica a Walther firearm replica that police officers later recovered (Exhibit 5). Jessica testified that Lopez did not display the replica during the carjacking; the gun that he used was twice the size overall and had a longer barrel. She stated that she "[could] tell by looking down the barrel that [Exhibit 5 is] a B.B. gun."

Police officers also presented Maira with a photographic lineup approximately one month following the carjacking. She selected two photographs, including one of Lopez, noting that the "two pictures [were] more alike of the man who took [Rojas's] car." Maira did not identify Lopez at the preliminary examination or at trial because she did not have "a good look" at the carjacker during the incident. She also testified that the gun that the carjacker used was larger and had a longer barrel than the replica admitted into evidence at trial.

Hsia Automobile Theft

In April, 2004, William Hsia owned a blue Toyota Camry automobile that he parked on Grand Avenue in Alhambra. Sometime between April 22, 2004, and April 23, 2004, the Camry was stolen from its parking spot.

McGraw and Marco Robberies

In the early morning of April 24, 2004, Joseph McGraw and Ruben Marco left a bar near the intersection of Portia Street and Sunset Boulevard. The men saw Lopez pushing a blue-gray Toyota automobile from a gasoline station driveway. Another man sat in the driver's seat inside the automobile. Lopez approached McGraw and Marco and asked them for assistance. As they walked to the automobile, Lopez commented to McGraw and then revealed a gun within a gun case tucked inside his waistband. Lopez demanded their wallets and Marco's watch, and threatened to kill them. After the men gave Lopez their wallets and the watch, Lopez entered the passenger side of the automobile, and the driver drove away. McGraw wrote the automobile license plate number on a styrofoam cup and provided the information to police officers.

Nine days later, McGraw identified Lopez's photograph and that of another man in a photographic lineup as looking like the man who robbed him. Marco also selected Lopez's photograph as a "true representation" of the man who robbed him.

McGraw identified Lopez at the preliminary examination and at trial. He noted that Lopez's appearance had changed; he now wore glasses, had longer hair, shaved his mustache, and gained weight. Marco also identified Lopez at trial and testified that Lopez's appearance had changed.

McGraw identified Exhibit 5, the replica firearm, as the weapon that Lopez displayed during the robbery.

Lopez's Arrest and Recovery of the Hsia Automobile

Shortly after midnight on April 29, 2004, Los Angeles Police Officers Hector Olivera and Jesus Aispuro were patrolling the Highland Park area when they saw Lopez driving a blue Toyota Camry automobile. The automobile had a license plate that was registered to another automobile. Lopez committed several traffic infractions as the officers followed him. He drove at high speed and eventually struck a fence. Lopez and a passenger left the automobile and ran. As he ran, Lopez dropped a BB gun that resembled a Walther semiautomatic pistol.

The officers pursued and apprehended Lopez. Among other things, the Toyota automobile contained a case for the BB gun; Marco's driver's license, medical insurance card, credit card, and Automobile Association card; and several dozen compact disc recordings, three of which Rojas identified as similar to those inside the 2004 Scion automobile that Lopez carjacked.

Police officers later discovered that the Toyota Camry belonged to William Hsia.

Conviction and Sentencing

The jury convicted Lopez of unlawfully driving or taking a vehicle, receiving stolen property, carjacking, and two counts of second degree robbery. (Veh. Code, § 10851, subd. (a); §§ 496, subd. (a), 215, subd. (a), & 211.) It also found that he personally used a firearm during commission of the robbery. (§ 12022.53, subd. (b).) The trial court sentenced Lopez to a prison term of 15 years and 8 months, consisting of the mid-term of 5 years for the carjacking count, 10 years for the firearm allegation, and 8 months for a probation violation in a previous criminal case. It imposed concurrent sentences for the remaining counts and struck a prior prison term allegation. (§ 667.5, subd. (b).)

Lopez appeals and contends that: 1) Jessica's identification testimony is unreliable and insufficient to support the carjacking conviction; 2) insufficient evidence supports the firearm use allegation; and 3) the trial court abused its discretion by denying his motion to sever the counts. He also requests that we review independently the records examined during the trial court's in camera Pitchess hearing. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

DISCUSSION

I.

Lopez argues that his carjacking conviction violates due process of law because it rests upon Jessica's asserted unreliable and uncorroborated identification testimony. (CALJIC No. 2.92 ["Factors To Consider In Proving Identity By Eyewitness Testimony"].) He points to these factors casting doubt upon Jessica's identification: the darkness of the area, with only streetlamp illumination; Jessica and Maira were frightened; Jessica's description of the carjacker varied from Lopez's driver's license description and his physical appearance during court hearings; Jessica was only "pretty sure" of her photographic lineup identification and in-court identification; Jessica's identification at trial occurred eight months following the crime; and the prosecutor "coached" Jessica to identify Lopez by informing her that compact disc recordings were recovered in the Hsia car theft.

In assessing the sufficiency of evidence to support a conviction, we review the evidence and draw all reasonable inferences therefrom to determine if reasonable and credible evidence supports the decision of the trier of fact. (People v. Snow (2003) 30 Cal.4th 43, 66.) In this task, we view the evidence most favorably to the judgment. (Ibid.) We do not evaluate the credibility of witnesses because the trier of fact is the exclusive judge of witness credibility. (Ibid.) This standard of review applies to direct evidence and circumstantial evidence alike. (Ibid.)

It is well-settled that absent physical impossibility or inherent improbability, the testimony of a single eyewitness can support a criminal conviction. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) Moreover, "[w]eaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate." (Ibid.)

Jessica's eyewitness identification testimony is sufficiently reasonable and credible to support the carjacking conviction. Jessica saw Lopez's face as they stood outside the automobile, and again, when she leaned inside to turn the ignition key. Street lights and the automobile interior light provided some illumination. Jessica saw that Lopez was Hispanic, and she therefore spoke to him in Spanish.

Jessica stated that she was "pretty sure" of her photographic lineup identification and she identified Lopez at the preliminary examination and at trial. Jessica also testified that Lopez's appearance had changed -- he no longer had facial hair, his hair was longer, and he had gained weight. At the preliminary examination, Lopez wore a goatee. The change in Lopez's appearance for court hearings does not render Jessica's testimony impossible or improbable. The jury easily could compare Lopez's trial appearance with the lineup photograph and evaluate the credibility of Jessica's identification. (People v. Allen, supra, 165 Cal.App.3d 616, 625 [only the trier of fact can resolve issues of eyewitness credibility].)

Moreover, there is additional corroboration of Jessica's identification by evidence of the three compact disc recordings later found in the Toyota Camry automobile. Police officers found the three discs, among several dozen others, in an automobile that Lopez was driving at the time of his arrest. Although millions of the recordings may exist, the three discs were found together several weeks following the carjacking in an automobile driven by Lopez.

II.

Lopez contends that there is insufficient evidence that he used a firearm during commission of the carjacking. He points out that a compressed air or BB gun is not a firearm. (§ 12001, subd. (b) [definition of firearm]; People v. Vasquez (1992) 7 Cal.App.4th 763, 764-765.) Lopez argues that Jessica looked at the gun only when it was pointed at her chest or the side of her face, it was dark, and she was frightened. He adds that Jessica did not testify that she had training or experience with guns other than seeing her father's gun collection. Lopez relies upon Jessica's preliminary examination testimony that a photograph of the Walther replica firearm "looked like the gun" used in the carjacking. He asserts that the personal use finding denies him due process of law because it rests upon insufficient evidence.

Sufficient evidence supports the firearm use finding. Jessica testified that Lopez's gun was twice the size of the Walther replica and had a longer barrel. Although it was dark, streetlights and the automobile's interior lighting enabled Jessica to see Lopez and the gun "from the front." Jessica had some familiarity with guns because her father collected them and the guns were "in the house on a regular basis." At the preliminary examination, Jessica testified that a photograph of the replica "looked like the gun," but that the barrel of Lopez's gun was "longer."

Maira also testified that the gun that Lopez displayed was larger and had a longer barrel than the Walther replica.

We do not redetermine matters of weight of the evidence or witness credibility. (People v. Snow, supra, 30 Cal.4th 43, 66.) The appellate record reflects that the jury requested a readback of Jessica's testimony concerning her turning the ignition key and whether "the gun was pointed in her face, did she look at the gun, lighting, etc." Following the readback, the jury returned a verdict. The trial court later denied a motion for a new trial, stating that whether Lopez used a firearm or a replica "was up for the jury to decide."

Jessica's testimony is neither impossible nor improbable. (People v. Allen, supra, 165 Cal.App.3d 616, 623.) Indeed, the carjacking occurred two weeks prior to the McGraw and Marco robberies, and Lopez may have possessed a different firearm during the first crime. Whether a defendant used a firearm is a factual question to be decided by the trier of fact. (People v. Hayden (1973) 30 Cal.App.3d 446, 451 [statement of general rule], disapproved on other grounds by People v. Rist (1976) 16 Cal.3d 211, 222, fn. 10.).)

III.

Lopez argues that the trial court abused its discretion by denying his pretrial motion to sever the counts because three criminal incidents were involved, the evidence was not cross-admissible, and the evidence of the carjacking was "weak." He adds that the trial court did not instruct that each count charges a distinct crime that must be separately decided. (CALJIC No. 17.02.) He asserts that the error denies him a fair trial and due process of law.

Section 954 provides that "[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . ." Joinder is permissible here because the criminal offenses fall within the same class of the wrongful taking of another's property. (People v. Koontz (2002) 27 Cal.4th 1041, 1075.)

The party seeking severance bears the burden of establishing a substantial danger of prejudice from joinder of the charges. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1120.) The trial court abuses its discretion by denying severance where evidence of the joined crimes is not cross-admissible in separate trials; a particular count is especially inflammatory; and a "weak" case has been joined with a "strong" case, among other factors. (Ibid.) If evidence of each of the joined crimes is admissible in a separate trial of the other crimes, any inference of prejudice is dispelled. (Ibid.)

The trial court did not abuse its discretion by denying the severance motion. Evidence of the stolen property (the compact disc recordings and Marco's identification documents) and the Walther replica found in the stolen automobile was admissible to prove identity in the carjacking and robbery counts. Also, the carjacking count was not a weak count. Jessica identified Lopez in a photographic lineup, at the preliminary examination, and at trial. Three compact disc recordings similar to those in the Scion automobile were found in the stolen automobile.

Although each crime may not reflect a unique or signature feature, the absence of evidence cross-admissibility alone does not demonstrate prejudice. (People v. Bradford (1997) 15 Cal.4th 1229, 1316.) Moreover, the jury verdict forms reveal that the jury decided the Hsia vehicle theft and McGraw and Marco robberies the day prior to requesting a readback of Jessica's testimony and deciding the carjacking count. Thus, although Lopez did not request the trial court to instruct with CALJIC No. 17.02, he did not suffer any prejudice. (People v. Morris (1991) 53 Cal.3d 152, 215 [no sua sponte duty to instruct with CALJIC No. 17.02], disapproved on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "A reasonable jury would have had no difficulty distinguishing between the [three] charges or giving them independent consideration in light of the evidence." (Ibid.)

IV.

Prior to trial, Lopez filed a motion pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, seeking discovery of complaints against Police Officers Olivera and Aispuro regarding fabrication and planting of evidence. The trial court held an in camera hearing regarding the personnel files of Officers Olivera and Aispuro, and concluded that the files contained no information of fabrication or planting of evidence. Lopez requests that we independently examine the sealed transcript and records produced in response to his discovery motion. (People v. Samuels (2005) 36 Cal.4th 96, 1135 [standard of review].)

The sealed transcript of the in camera Pitchess hearing is part of the appellate record. We have reviewed the transcript, and conclude the trial court did not abuse its discretion by refusing to disclose the information produced in response to the discovery motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1229 [appellate court may review the transcript of the in camera Pitchess hearing to determine if trial court abused its discretion].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Michael K. Kellogg, Judge

Superior Court County of Los Angeles

______________________________

Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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