Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA074163 Steven R. Van Sicklen, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
A jury convicted defendant Tray Darthart of one count of second degree robbery (Pen. Code, § 211). He admitted having suffered a prior “strike” under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and the trial court sentenced him to six years in prison (the middle term, doubled). He appeals from the judgment of conviction, contending that: (1) insufficient evidence supports the conviction, because the eyewitness identifications were inherently improbable; (2) the trial court erred in denying his motion for a new trial; (3) use of his prior juvenile adjudication of robbery as a strike violated his federal constitutional rights to due process and a jury trial; and (4) the trial court erred in denying his motion to strike his prior strike conviction (juvenile adjudication). He also asks us to review the in camera proceeding on his Pitchess (Pitchess v. Superior Court (1974) 11 Cal.3d 531) motion. We affirm the judgment.
All undesignated section references are to the Penal Code.
BACKGROUND
Prosecution
Around 6:15 p.m. on January 30, 2009, 15-year-old Jose C. and his twin brother Jesus were waiting at a bus stop on La Brea Avenue in Inglewood. Three black men approached. One of them, who was wearing black pants and a red shirt, they later identified as defendant. The others were wearing (respectively) a black and red shirt, and a black shirt. The men asked, “Where are you from?” Jose replied, “I don’t bang, ” and began to walk away. Defendant reached into Jose’s pocket and took his cell phone and iPod. When Jose grabbed defendant’s hand, defendant and the others struck him in the back and chest. Defendant was facing Jose, the other two were off to the side and back. Jose told Jesus to step back so he would not get hurt. Defendant and the other two men fled, running south down an alley.
Jose flagged down a police officer, Inglewood Police Officer Ivan Chapman, told him that he had been robbed, and described the suspects: black males, approximately six feet tall, one wearing a red shirt and black pants, and another “black and black.” Jesus also described the crime. According to Officer Chapman, Jose did not mention a red shirt, but rather said that the assailants were all wearing black. Officer Chapman observed three black males wearing mostly black running southbound. After his initial foot pursuit was unsuccessful, he returned to his vehicle and drove after them. Officer Chapman later saw the three men hiding in a church doorway, whereupon they ran westbound. One wore a red shirt, the second wore a black sweatshirt with multi-colored logos, and the third wore a black sweatshirt. Jose had followed Officer Chapman for a distance, but saw only two men fleeing as they passed him, jumped a fence, and went out of sight.
Officer Chapman called for additional officers, drove around the block, and detained the three men he had seen (who were now coming toward him) at gunpoint. One of the men was defendant. Defendant wore a black sweatshirt and a red T-shirt underneath. It was not uncommon for young black males in that area to wear red.
Jose and Jesus were taken to a field show-up. After an admonishment, Jose was shown three hand-cuffed individuals separately. He did not identify the first two “because they weren’t the persons.” He identified defendant, the third person he was shown, based on “[t]he way he looked. And the way he was dressed.” He also identified defendant at trial.
Jesus was shown one person sitting inside one police vehicle and two sitting in another. According to Officer Chapman, Jesus almost immediately pointed to defendant and said, “That’s him with the red shirt.” At trial, Jesus testified that he had identified defendant in the field show-up “[b]ecause of the [red] shirt he had on. And the face.” He did not identify defendant at trial.
On cross-examination, asked by defense counsel whether it was possible the person he chose “just looked sort of like” one of the robbers rather than being one, he replied, “Yes.” Also, when asked if the person looked familiar “from being at this bus stop, or... from maybe having seen him before some other place?”, he answered, “I’m not sure.” He answered “yes” when asked if he was not sure whether the person “looked like one of the robbers as opposed to maybe [being] someone you’d seen in movies, or -- at school or something?” He answered “yes” to defense counsel’s statement “you aren’t even that sure at the time you made your original identification.”
Defense
Bobby Alexander, a close friend of defendant, testified that they lived in the same apartment complex in Bakersfield. In January 2009, they traveled to visit defendant’s mother in Long Beach. On the morning of January 30, 2009, they went to Inglewood with defendant’s cousin, Jarren Grant, to visit another cousin. Afterward, they waited inside a restaurant for a bus to go to Hometown Buffet for dinner (it was dark and they were afraid of being shot). While waiting, they heard a siren, and later saw the bus go by, so they left the restaurant to run to the bus terminal down the street, to see if they could catch the bus there. As they were running, they saw a police vehicle. They began to walk, and the police officer stopped them. After defendant was arrested following the field show-ups, Alexander and Grant returned to the restaurant, and Grant spoke to one of the employees.
Grant testified in corroboration of Alexander’s testimony. In addition to describing the events also testified to by Alexander, Grant testified that he spoke to a person at the restaurant to ask if she would tell the police that they had been in the restaurant and ran out to chase the bus. The person did not want to get involved, but gave Grant a card from the restaurant. Grant and Alexander then went to the police station, but could find no one to help them.
Myasma Ung testified that she works in her family’s restaurant in Inglewood. She remembered a night when three young black men entered the restaurant to wait for the bus and stayed for about ten or fifteen minutes. They then left, not running but moving fast. Sometime later, two of them returned, told her what had happened to the third boy, and took a business card. She did not remember the time when the young men were there.
DISCUSSION
Sufficiency of the Evidence
Defendant contends that the evidence is insufficient to support his conviction, because the identification testimony was inherently improbable. We disagree.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Here, there is no doubt that on the entire record a rational trier of fact could find defendant guilty. Defendant fled with two other men from the crime scene, and was apprehended by Officer Chapman. Jose positively identified defendant at a field show-up shortly after the crime. So, too, did Jesus. Jose also identified defendant at trial without hesitation.
None of the inconsistencies or purported weaknesses cited by defendant, singly or in combination, suggests that the identifications are inherently improbable. Defendant points to: (1) Jose and Jesus’ inability to identify the other two men apprehended with defendant, (2) the fact that although he initially fled from the crime scene, defendant was heading back toward the scene when Officer Chapman detained him, (3) various factors purportedly affecting the reliability of the identifications (e.g., it was dark during the crime and the field show-ups, the show-ups were suggestive, and the identification was cross-racial), and (4) defendant’s alibi defense. These and the other matters to which defendant refers are merely factors for consideration by the trier of fact. They do not constitute a basis to set aside the verdict. “‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which 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.]”....’ [Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 306.)
New Trial Motion
Defendant moved for a new trial on the basis of newly discovered evidence. The newly discovered evidence was a transcript of police communications during Officer Chapman’s pursuit of the suspects. At one point, Officer Chapman refers to a suspect having just run from him. He then refers to “[t]wo male blacks” and provides a brief description. At another point, another officer states that “[a]ll we have is... one of the subjects is wearing a red shirt and the other had on like a red and white striped shirt.” At the end of the pursuit, Officer Chapman states, “I have three possibles at gun point.”
Defense counsel argued that this evidence tended to show that only two robbers were involved rather than three. The trial court denied the new trial motion, ruling that it was not reasonably probable that the evidence would have led to a different verdict. On appeal, defendant contends that this ruling was error. He is incorrect.
To prevail on a motion for new trial on the ground of newly discovered evidence, the defendant must show, inter alia, that the evidence is such that a different result is probable on retrial. (People v. Ochoa (1998) 19 Cal.4th 353, 473.) We review the trial court’s ruling on a new trial motion for abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1004 (Beeler).) Here, as he did in the trial court, defendant contends that the evidence of the radio transmissions tends to prove that only two persons committed the robbery, and thereby undercuts the credibility of the trial testimony of Jose, Jesus, and Officer Chapman that there were three robbers. However, as a general rule, “‘evidence which merely impeaches a witness is not significant enough to make a different result probable....’ [Citation.]” (People v. Green (1982) 130 Cal.App.3d 1, 11.) This general rule certainly applies here. The transcript raises, at best, a weak inference that two rather than three robbers were involved. As the trial court reasoned, “there are lots of explanations as to why he [Officer Chapman] may have said two [suspects] at that point.” The radio communications constitute a scant basis for a reasonable jury to disregard the testimony of Jose, Jesus, and Officer Chapman that there were three robbers, or to disbelieve the identifications made by Jose and Jesus. In short, the trial court did not abuse its discretion in finding the evidence of the radio transmissions insufficient to make a different result probable on retrial.
Because we resolve defendant’s contention on this basis, we need not discuss whether he satisfied the other elements required to prevail on a new trial motion. (See Beeler, supra, 9 Cal.4th at p. 1004 [setting forth elements].)
Prior Strike
Defendant contends that the use of his prior juvenile adjudication for robbery as a strike under the Three Strikes law violates his sixth and fourteenth amendment rights. He concedes that we are bound by the California Supreme Court’s decision in People v. Nguyen (2009) 46 Cal.4th 1007, which rejected an identical claim. He makes his contention only to preserve it for federal habeas corpus review. As compelled by Nguyen, we reject defendant’s contention.
Defendant also contends that the trial court erred in denying his motion to dismiss the prior juvenile adjudication as a strike under People v. Williams (1998) 17 Cal.4th 148 (Williams), and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) In the trial court, defendant made the motion on the following grounds: (1) there was no significant violence or planning in the current offense, (2) defendant’s youth (16 when he committed the prior strike offense, 18 at the time of sentencing in the present case), (3) defendant’s lack of any other significant criminal record, and (4) his having been assaulted twice in custody while awaiting trial. After listening to argument, the court implicitly denied the motion, sentencing defendant to the midterm for robbery, doubled, for a total of six years.
Relying on essentially the same factors as in the trial court, defendant argues that the trial court abused its discretion in denying his motion. We find no error. The prior robbery occurred in November 2006, only three years before the instant crime. When he committed the current offense, defendant was on probation for a separate juvenile adjudication for giving false information to a police officer (§ 148.9, subd. (a).) According to the probation report, he had failed to report to his probation officer in that case and a bench warrant had been issued, before his commission of the present offense. Here, he and two others targeted two younger boys at a bus stop, issued a gang challenge (“Where are you from?”), took the cell phone and iPod belonging to one of the boys, and, when the boy tried to get them back, struck him about the chest and back before fleeing. From these facts, the court could reasonably conclude that prior attempts in the juvenile system to control defendant’s criminal behavior had failed, that he remained likely to engage in the kind of predatory behavior demonstrated by the present case and his prior robbery adjudication, and that, therefore, “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, ” he should be deemed to be within, not outside, the spirit of the Three Strikes law. (Williams, supra, 17 Cal.4th at p. 161.) The trial court did not abuse its discretion in not striking the prior strike.
Pitchess Motion
Defendant requests that we examine the transcript of the in camera hearing on his post-verdict Pitchess motion to determine whether there are any complaints of misconduct concerning Officer Chapman to which he was entitled to support his new trial motion (he was provided none in response to the motion). (See People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have examined the transcript and conclude that there are no complaints to which defendant was entitled.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.