Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Super. Ct. No. KA069654, Charles E. Horan, Judge.
Barbara A. Smith, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Miguel Munoz appeals his conviction by jury of home invasion robbery in concert with another (count 1), first degree burglary (count 2), false imprisonment by violence (counts 3, 6), witness dissuasion (counts 4, 7), and carjacking (counts 8, 9). (Pen. Code, §§ 211, 213, subd. (a)(1)(A), 459, 236, 136.1, subd. (b)(1), 215, subd. (a).) The jury found that appellant personally used a firearm in the commission of all such offenses. (§ 12022.53, subd. (b) [counts 1, 2, 3, 4, 5, 6, 7, 8, 9].) The jury also convicted his codefendant, Henry Alvarado, of those crimes, as well as other crimes (forgery, commercial burglary and grand theft) that were not charged against appellant. The trial court dismissed the count 5 robbery charge and sentenced appellant to state prison for 32 years. Appellant challenges the sufficiency of the evidence and contends that the trial court committed sentencing error. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
In 2004, Martha Hernandez and her two daughters lived with Martha's sister and brother-in-law on Loukelton Street in La Puente. On March 30, 2004, around noon, Martha and her five-year-old daughter were home alone when a man knocked on the door and asked for Martha's brother-in-law. When Martha indicated that he was not home, the man asked for a pen to leave a message. The man entered Martha's home, uninvited, as she handed him a pen. Martha told him to leave, and he responded, "[S]hut the F up." Her daughter said, "Mommy, I'm scared. Is he going to hurt us?" Martha was also scared. Two other intruders entered her home, wearing oversized sweatshirts, with hoods covering much of their faces; one of them held a gun.
While the hooded intruders searched Martha's home, the first intruder moved Martha and her daughter toward the kitchen. At the direction of the first intruder, the gun-bearing intruder took Martha and her daughter into the bathroom, where they remained for approximately 20 or 30 minutes. The intruders took the keys to Martha's 1999 Expedition and her sister's 2003 Envoy and told Martha that they needed the cars, which they would leave in the neighborhood. They also told her not to call the police, that they knew where she lived, and would see her in the neighborhood. They took a laptop, jewelry, phone, purse, wallet, driver's license, and other small items, as well as the cars. The police located both cars within a week.
After the intruders left, Martha went to a neighbor's house to wait for her cousin. Martha and her cousin went to school, before closing, to pick up Martha's eight-year-old daughter. Noticing that something was wrong, a school employee called the police. Martha did not call the police herself because the intruders had told her not to do so and she was afraid.
On April 7, Alvarado, three other men, and a woman named Melissa selected approximately 48 items of merchandise at the Puente Hills Robinsons-May store. Melissa used Martha's identification card to try to open a credit account. Security officers seized Martha's identification card and several other documents after detaining Alvarado, Melissa and their accomplices.
On November 17, 2004, Los Angeles County Sheriff Detective Angel Matute met with Martha regarding the recovery of her California identification, or driver's license, and a debit card at the Robinsons-May store. Before that meeting, Matute knew nothing about the March 30 robbery. As Matute searched his file for a document, Martha noticed a June 14, 2001, Department of Motor Vehicles photograph of Alvarado and said that he was one of the men from the March 30 robbery. She explained that three men had forced their way into her home and threatened to kill her. One man with a gun forced her and her daughter into the bathroom while two other men searched her home.
Martha told Matute that one of the perpetrators was "pale" and "like a ghost." She recognized him as a man called "Ghost" whom she did not know but had seen in her neighborhood. People in Martha's neighborhood had told her that a man called "Ghost" was involved in the crimes. Matute thought that appellant was nicknamed "Ghost."
Matute showed Martha two photographic displays. She selected an April 7, 2004, booking photograph of Alvarado and stated he might be the perpetrator who had knocked on her door. She circled Alvarado's photograph and stated that the person in that photograph was the "[s]ame guy but [had] gained weight for sure." (In court, Martha repudiated her identification of Alvarado because, unlike the perpetrator, Alvarado was cross-eyed.) In viewing a separate photographic display, Martha selected appellant's photograph and indicated he was the guy who carried a gun during the March 30 robbery.
During trial, Martha testified that she did not get a "good look" at the faces of the men on March 30 because most of their faces were covered by the hoods of their oversized sweatshirts. She also testified that one of the men was pale, short and stocky. She selected appellant from the photographs in November 2004, because "they [the police investigators] said to just look and see . . . the closest that [she] could remember that looked like that person . . . ." When she saw appellant in court, she realized that he was not one of the perpetrators who entered her home on March 30. During trial, when asked why she wrote, "This is the guy who had the gun" under appellant's name, she answered, "He [Matute] said, just write that he had the gun."
DISCUSSION
I
Appellant claims that there is insufficient evidence to support his convictions. In reviewing such a claim, we view the evidence most favorably to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) The test is whether, after considering the evidence most favorably to the prosecution, any rational trier of fact could have found the elements of the crime to be true beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; Johnson, at pp. 576-578.)
Appellant argues that Martha's out-of-court identification of him is not sufficient to prove that he is the perpetrator of the March 30 crimes (counts 1 through 9). The testimony of a single eyewitness identifying a defendant as a perpetrator is sufficient evidence to support a conviction. (Evid. Code, § 411; People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Even if the identification evidence is weak and strong alibi testimony is provided, appellate courts will defer to the jury's conclusion and not interfere with the verdict. (People v. Westbrook (1976) 57 Cal.App.3d 260, 262.)
Appellant stresses that Martha testified that her earlier out-of-court identification of him was erroneous. A victim's inability to identify a suspect in court does not necessarily negate the evidentiary value of his out-of-court identification. (People v. Cuevas (1995) 12 Cal.4th 252, 257, 271-272.) Further, a victim's identifications of a suspect need not be positive to have evidentiary value. (People v. Midkiff (1968) 262 Cal.App.2d 734, 740.)
We may not reverse a judgment based on eyewitness identification unless the identification is "inherently incredible." (People v. Keltie (1983) 148 Cal.App.3d 773, 781-782.) Prior to his November meeting with Martha, Matute had no knowledge of the March 30 home invasion robbery. During their meeting, Martha identified appellant as the person who held a gun during that robbery. Although Martha repudiated her out-of-court identification of appellant when she testified in court, her identification was not "inherently incredible." The jury heard but rejected appellant's attack on Martha's identification of him. We may not now reweigh the evidence or assess the credibility of witnesses to reach a different conclusion. (People v. Watts, supra, 76 Cal.App.4th at pp. 1258-1259.)
We also reject appellant's argument that the evidence is not sufficient to support the firearm use enhancement allegations. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) When considering a challenge to the sufficiency of the evidence supporting an enhancement, we review the record in the light most favorable to the judgment and draw all reasonable inferences in favor of the disputed finding. (People v. Alvarez (1996) 14 Cal.4th 155, 225; People v. Tenner (1993) 6 Cal.4th 559, 567; People v. Jones (1999) 75 Cal.App.4th 616, 631; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) "The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt." (Alvarez, at p. 225.) As in Alvarez, "The answer [here] is yes." (Ibid.)
After stating that section 12022.53 allegations could not apply to the crimes charged in counts 3, 4, 6 and 7, the court indicated that it would apply section 12022.5 enhancement penalties to those counts.
Relying primarily on People v. Allen (1985) 165 Cal.App.3d 616, and People v. Smith (2005) 135 Cal.App.4th 914, appellant contends that all of the firearm use findings should be stricken from the judgment or reduced to section 12022, subdivision (a) principal armed enhancements. Appellant's reliance on Allen and Smith is misplaced. In Allen, the jury found true firearm use enhancement allegations charged against two defendants in a single victim murder. Just before they heard gunshots, two witnesses saw both defendants enter the victim's room. Because no witness saw who fired the fatal shots, however, the court concluded that it was "purely a matter of conjecture" whether the gun was used by one defendant or the other. (Allen, at p. 626.) It reduced the gun use enhancements to lesser-included principal armed enhancements. (Id. at p. 627.)
The Smith case involved a murder special circumstances finding against codefendant Taffolla, a finding which required evidence that an aider and abettor had the intent to kill or acted with reckless indifference to human life. (§ 190.2, subds. (c) & (d).) Although Smith's blood was found with that of the victim in her room (the murder scene), the evidence placing Taffolla in the victim's room was very weak—a DNA allele on a bathroom towel was consistent with that of both Taffolla and another person. No testimony placed Taffolla in the victim's room. The court found such evidence insufficient to support the special circumstances finding on the theory that Taffolla was the actual killer and had the intent to kill the victim. (People v. Smith, supra, 135 Cal.App.4th 914, 927.)
Contrary to Smith and Allen, the prosecution below presented direct evidence to support the challenged finding--Martha identified appellant in the photographic display as the person who held the gun during the March 30 robbery. Appellant nevertheless argues that the evidence was not substantial for various reasons, e.g., Martha's identification of appellant was based on rumors, she repudiated that identification in court, etc. Those arguments were made to, and rejected by, the jury. As a reviewing court, it is not our place to reweigh the evidence or substitute our assessment of a witness's credibility for that of the trier of fact. (See People v. Culver (1973) 10 Cal.3d 542, 548.) Because the evidence reasonably supports the jury's findings, reversal is not warranted, even if the evidence could be reconciled with a contrary finding. (People v. Dominguez (1995) 38 Cal.App.4th 410, 421.)
II
The court sentenced appellant to a 32-year prison term, including upper terms for the robbery, burglary and felony false imprisonment counts, plus one-third of the upper term for the section 12022.5 firearm use enhancement on two subordinate counts, and a full, consecutive upper term for the section 12022.5 firearm use enhancement for one felony false imprisonment count. Appellant argues that the imposition of the upper terms for three offenses and all enhancements violated his Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (Jan. 22, 2007, 05-6551) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham). The prosecution asserts that appellant is precluded from raising this issue on appeal because he failed to object in the trial court. We disagree. (People v. Black (2007) 41 Cal.4th 799 (Black II); see also People v. Black (2005) 35 Cal.4th 1238 (Black I).)
The California Supreme Court recently held that "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th 799, 816.) The "prior conviction" exception "include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Id. at p. 819.) Here, appellant argues that the court improperly relied on his prior juvenile adjudication and camp placement for possession of a firearm at age 16 in selecting the upper term section 12022.5 firearm use enhancements. We disagree.
California's appellate courts are divided about whether a juvenile adjudication may be used as a prior conviction for purposes of sentence enhancements. The prevailing view is that when a juvenile receives the requisite constitutional protections in juvenile court, a resulting adjudication may be treated as a prior conviction for purposes of Apprendi v. New Jersey (2000) 530 U.S. 466. (People v. Bowden (2002) 102 Cal.App.4th 387, 394; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Lee (2003) 111 Cal.App.4th 1310, 1316; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 834; see also U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032-1033; U.S. v. Jones (3d Cir. 2003) 332 F.3d 688, 696; U.S. v. Tighe (2001) 266 F.3d 1187, 1200 (dis. opn. of Brunetti, J.).) However, in one recent Sixth District case, two justices concluded that a juvenile adjudication is not a prior conviction within the meaning of Apprendi because the juvenile offender does not have the right to a jury trial in juvenile proceedings. (See People v. Nguyen (2007) 152 Cal.App.4th 1205.)
Here, we follow the prevailing view and conclude that the court properly relied on appellant's prior juvenile adjudication and camp placement for possession of a firearm in selecting the upper term section 12022.5 firearm use enhancements. The court's reliance on the juvenile firearm offense and related disposition was reasonably related to the court's sentencing decision where appellant used a firearm to intimidate a woman and her five-year-old child during the current false imprisonment and witness dissuasion crimes. (See People v. Brown (2000) 83 Cal.App.4th 1037, 1044; California Rules of Court, rule 4.408(a) [allowing "the application of additional criteria reasonably related to the decision being made" in sentencing].)
The court imposed the upper term on the count 1 robbery because it was a premeditated crime. It explained, "[O]bviously bringing the weapons to the location and the manner in which the gentlemen arrived made it clear that the crime was . . . premeditated [which] in and of itself justifies the high term . . . ." It relied on the same fact to impose stayed upper terms for burglary and felony false imprisonment (counts 2 and 3). In selecting the upper term for the count 6 false imprisonment firearm use enhancement, the court also relied upon the particular vulnerability of the five-year old victim. By basing its upper term selections upon factors that were not found by a jury, the court violated appellant's Sixth Amendment right to a jury trial, under Cunningham. (People v. Sandoval (July 19, 2007, S148917) __ Cal.4th __ [62 Cal.Rptr.3d 588, 597].)
Cunningham error is subject to the harmless error test prescribed for federal constitutional error—whether the error was harmless beyond a reasonable doubt. (People v. Sandoval, supra, __ Cal.4th __ [62 Cal.Rptr.3d 588, 597-599].) "[If this] court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Id. at p. 598.) Applying that standard, we find that the Cunninghan error was harmless beyond a reasonable doubt. The jury unquestionably would have found that the robbery, burglary and false imprisonment crimes were premeditated--Alvarado used trickery to enter Martha's home (asking for her brother-in-law, then for a pen and paper to leave him a message in his absence); appellant and the third perpetrator entered with large hooded sweatshirts covering parts of their faces; and the perpetrators came prepared with at least one weapon that appellant used to intimidate the victims. It is inconceivable that the jury would not have found that the five-year-old victim was particularly vulnerable.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.