Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA053440, Charles L. Peven, Judge.
Barbara Michel, 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, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Antonio Javier Saldana (Saldana) appeals from the judgment entered following a jury trial which resulted in his conviction of attempted second degree robbery (Pen. Code, §§ 664/211) and three counts of second degree robbery (§ 211), during each of which he personally used a firearm (§ 12022.53, subd. (b)), and the trial court’s findings he previously had served a prison term (§ 667.5, subd. (b)), had been convicted of a serious felony (§ 667, subd. (a)), and had been convicted of a serious or violent felony within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Saldana to 36 years, 4 months in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that Saldana committed an attempted robbery and three robberies between October 29, 2005 and November 6, 2005.
1. The prosecution’s case.
a. The robbery of Devinder Singh (Count Six).
At approximately 1:45 a.m. on October 29, 2005, Devinder Singh (Singh) was working at the 7-Eleven store at the intersection of Sepulveda Boulevard and Plummer. Singh was working alone. Two or three customers were in the store making purchases.
Saldana entered the store and told Singh to open the cash register and give him the money. Singh complied with Saldana’s order. Saldana then opened a second cash register, but there was no money inside. After Saldana left the store, Singh called his boss. Approximately 25 minutes later, police arrived.
Los Angeles Police Officer Dorian Brown (Brown) and her partner responded to a call directing them to the 7-Eleven store on Sepulveda. Brown spoke to Singh, who told the officer he had just been robbed. Singh told Brown that a man entered the store, removed a gun from his waistband, pointed the weapon at Singh, then told Singh to give him all the money. Singh, who was frightened, opened the cash register and gave all the money to the man. After he left the store, Singh saw the robber enter the passenger side of a white, four-door, 2002 Nissan Altima. Singh described the robber as “a male Hispanic, light brown, . . . 5’7” in height, . . . 150 pounds, 25 years of age, wearing a black beanie, black sunglasses, a black jacket with gray stripes along both sleeves, black pants and white tennis shoes.”
At trial, film from the surveillance camera at the 7-Eleven store was played for the jury. The film showed a man enter the store, carrying something in his hand.
b. The robbery of Haider Zaidi (Count seven).
At approximately 3:00 a.m. on October 29, 2005, Claudia Cruz (Cruz) was working as a cashier at the Denny’s restaurant on Gladstone Avenue in Sylmar. Cruz walked away from the register to seat a customer. When she turned around to return to the register, Cruz saw Saldana “pointing a gun at one of the servers[, Haider Zaidi (Zaidi),] and taking money from the register.” As Zaidi moved away from the register, Saldana left the restaurant through the front door and got into a white car. The restaurant manager, who had been standing next to Cruz, ran to the back of the restaurant and telephoned the police.
A police detective later showed Cruz a group of photographs. Cruz identified a photograph of Saldana as that of the man who had taken the money from the register. In court, Cruz again identified Saldana as the robber.
Angelica Contreras (Contreras) worked as a waitress at the Denny’s restaurant. Contreras was working at the counter when she saw Saldana enter the restaurant. She was initially just “a couple of steps . . . away from him.” Contreras saw Saldana walk directly to the cash register, heard him tell Zaidi to “get away,” then watched as he pulled out a gun, took all the cash, then ran out the door. Contreras saw Saldana get into the driver’s seat of a white, four-door “Stratus” parked in front of the restaurant, then drive off.
Contreras was later shown a photographic line-up. She identified a photograph of Saldana as that of “the guy who had the gun and robbed Denny’s.” Contreras had “no doubt” she had selected the photograph of the robber. She was “100 percent confident.” Contreras again identified Saldana in court.
On October 30, 2005, Patrick Joyce (Joyce) was working as a park ranger for the City of Los Angeles. At approximately 1:00 a.m. Joyce was patrolling Griffith Park when he observed a white, four-door, 2005 Dodge Stratus parked on the right shoulder approximately one-half mile from the ranger station. The rear tire of the car was “blown out” and Joyce stopped to investigate. Joyce “ran the license plate of the vehicle” to determine whether it had been stolen, had been involved in a crime or had simply been abandoned. The dispatcher informed Joyce that the car “was wanted” and had been used in a robbery. Joyce requested a tow truck to impound the car. When Joyce then noticed a fingerprint on the right, front, passenger side window, he requested “that the vehicle be held for prints.”
Shanna Lee (Lee) is a forensic fingerprint specialist for the Los Angeles Police Department. On October 30, 2005, Lee went to Hollywood Tow and obtained nine latent prints from a Dodge Stratus. Lee compared prints taken from Saldana with the latent prints lifted from the Stratus and determined Saldana’s right thumb print matched a latent print lifted from the outside of the Stratus’s driver’s side door.
c. The robbery of Balkar Singh Deol (Count two).
At approximately 1:00 a.m. on November 2, 2005, Balkar Singh Deol (Singh) was working at the 7-Eleven store at Burbank Boulevard and Cahuenga in Burbank. Singh, who was alone in the store, was cleaning the counter when he looked outside and saw Saldana. Saldana entered the store, pulled out a gun and said, “Give me the money.” Singh opened the registers and gave Saldana the money. He then gave to Saldana his $400 cellular telephone and approximately $10 from his pocket. After Saldana left the store, Singh telephoned the police.
The transcript refers to Balkar Singh Deol as “Mr. Singh.”
Balkar Singh Deol was unavailable to testify at trial due to a family emergency in India. Accordingly, his testimony from the preliminary hearing was read into evidence.
In court, when asked to identify the man who had entered the store, Singh directed his attention to Saldana and stated, “It seems like this is the guy who is sitting here.” Singh indicated the robber had been wearing a cap and a hood, but that his face had been exposed. On cross-examination, when Singh was asked whether he was certain that Saldana was the man who had robbed him, Singh replied, “It seems like it is him. I don’t’ really remember from the picture. I think it’s him.” Singh then stated that he was “not sure.”
Los Angeles Police Officer Rob Rand (Rand) and his partner, Officer Kirkman, investigated the robbery at the Burbank 7-Eleven store. Rand retrieved the video surveillance tape and had reviewed with Singh that portion of the tape showing the robbery. Singh had verified that what was shown on the video tape was “what happened.” The video tape showed that the robber had been wearing a hood over a beanie, but that his face was exposed. The tape also showed that the robber, as he had during other robberies, was wearing distinctive white tennis shoes with dark laces.
The video tape of the robbery was played for the jury and a transcript of the audio portion of the tape was given to each juror.
d. The attempted robbery of Mike Majers (Count one).
Mike Majers owns Majers Liquor and Check Cashing on San Fernando Road in the City of San Fernando. At just after midnight on November 6, 2005, Majers was working behind the counter of his store. There is “plexiglass all the way down on the counters,” with openings through which a customer can slide money or objects. One customer was in the store, standing to the side of the counter, scratching off lottery tickets.
Majers looked up to see Saldana enter the store, walk straight toward the counter, pull out a gun and yell, “Give me your fucking money.” Majers raised his hand, told Saldana it would be just a second, then stepped behind the plexiglass, raised his middle finger and said, “fuck you.” When Saldana then placed his gun up against the glass, Majers, who knew the bullet could not penetrate the glass, told Saldana to take his best shot. Saldana put the gun through one of the openings in the plexiglass and attempted to aim it at Majers. Majers, however, “slapped” the gun out of Saldana’s hand. Saldana turned and ran out of the store, knocking over a rack of merchandise as he went. Majers, who had already “hit” his alarm, then telephoned the police.
In court, Majers identified Saldana as the man with the gun who had attempted to rob him. When he was asked if he had any doubts that Saldana was the man who came into his store during the early morning hours of November 6, 2005, Majers responded that he had “[n]o doubt whatsoever.”
A video camera in Majers’s store recorded the event. The video was played for the jury and Majers stated that the tape “fairly represent[ed] what [had] happened.”
San Fernando Police Detective Christian Colelli (Colleli) assisted in the investigation of the attempted robbery at Majers’s store. Colleli recovered Saldana’s gun, a stainless steel, semi-automatic Ruger P-95, from the counter top at Majers’s store. Colleli removed a live round from the chamber and 10 rounds from the magazine.
San Fernando Police Detective Anthony Vairo (Vairo) investigated the November 6, 2005 attempted robbery. Vairo first contacted the registered owner of the gun used by Saldana. The registered owner had noticed that the gun was missing on October 29, but had not reported it stolen to the Los Angeles Police Department until November 7, 2005. The registered owner gave to the detective the name of a possible suspect for the theft of the weapon and, using that information, along with the police department’s computer system, Vairo was directed to Saldana.
Vairo prepared a six-pack, or photographic line-up, to show to Majers. Vairo testified that he “obtained [Saldana’s] last booking photo, which was in 2003, and placed it in a photo lineup.” When he then showed the line-up to Majers, Majers was unable to identify the person who had attempted to rob him at his store. Vairo then found a more recent photograph of Saldana and placed it in a photographic line-up. When the second line-up was shown to Majers, Majers identified the photograph of Saldana and indicated he was “absolutely positive” that Saldana was the man who had attempted to rob him.
2. Defense evidence.
Anette Gutierrez (Gutierrez) is Saldana’s girlfriend. Saldana had moved into Gutierrez’s house in Reseda on October 21, 2005. The couple were usually in bed by 10:00 or 10:30 p.m. Saldana would watch television while Gutierrez went to sleep. Gutierrez could not recall a time when Saldana left the house between midnight and 3:00 a.m. However, on occasion, Saldana, who did not own a car, would leave the house for between 10 and 15 minutes to walk to a nearby liquor store to buy cigarettes.
In 2005, Gutierrez owned a “champagne” colored 1993 “Chevy Oldsmobile.” However, Saldana never drove Gutierrez’s car. From the end of October through the beginning of November 2005, Gutierrez never saw Saldana drive a white Dodge Stratus or a white Nissan Altima. Gutierrez never saw Saldana in possession of a handgun.
Dwight Jones (Jones) and Saldana are friends. On the evening of October 28, 2005, Jones held a birthday party for a friend at his home. Saldana was one of the guests. The party started at approximately 8:00 p.m. and continued through the night. Saldana did not leave the party until after the sun had come up on October 29. Jones was certain Saldana was at the party for the entire night because “it was mostly a girl party. Only a few men were there to keep company.” Jones would have noticed if Saldana had left.
Jones testified the party took place on a Saturday night. However, in October of 2005, Saturday fell on the 29th, not the 28th day of the month. When asked whether he was “more certain” that the party took place on a Saturday or “more certain that it was on the 28th,” Jones responded, “More certain about the date.”
Jones had never seen Saldana drive a white Dodge Stratus or a white Nissan Altima. Jones had never seen Saldana in possession of a hand gun.
2. Procedural history.
Saldana was charged by a seven count information filed June 19, 2006, with one count of attempted second degree robbery in violation of sections 664/211 (count one), four counts of second degree robbery in violation of section 211 (counts two, five, six and seven), one count of grand theft of a firearm in violation of section 487, subdivision (d)(2) (count three), and one count of carjacking in violation of section 215, subdivision (a) (count four). As to counts one, two, four, five, six and seven, it was alleged Saldana personally used a handgun during the commission of the offenses (§ 12022.53, subd. (b)). It was further alleged as to each count that Saldana had served a prior prison term (§ 667.5, subd. (b)), previously had been convicted of a serious felony (§ 667, subd. (a)), and previously had been convicted of a serious or violent felony within the meaning of the Three Strikes law (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On November 30, 2006, at the close of the People’s case-in-chief, the trial court granted Saldana’s section 1118.1 motion to dismiss count three, grand theft of a firearm.
On December 4, 2006, the jury indicated it was hopelessly deadlocked with regard to counts four, carjacking, and five, a robbery. Accordingly, the trial court declared a mistrial as to those counts. The jury found Saldana guilty of the remaining four counts.
On January 31, 2007, the trial court found true the allegations of prior convictions and prison terms. The court then sentenced Saldana to a total term of 36 years, 4 months in prison. Saldana was given presentence custody credit for 500 days, consisting of 439 days actually served and 61 days of good time/work time.
Saldana filed a timely notice of appeal on February 15, 2007.
CONTENTIONS
Saldana contends: (1) there is insufficient evidence he was the individual who robbed Balkar Singh Deol, and (2) the prejudicial remarks of Officer Vairo require reversal of all counts.
DISCUSSION
1. Substantial evidence supports Saldana’s conviction of the robbery of Balkar Singh Deol (Singh) as alleged in count two.
Saldana contends there is insufficient evidence to support the jury’s finding he was the individual who robbed Singh.
“ ‘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, supra, 6 Cal.4th at p. 1206.)
“It is well settled in California that one witness, if believed by a jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear [citations].” (People v. Ozene (1972) 27 Cal.App.3d 905, 910.)
Viewing the evidence in light of these principles, it cannot be said that Singh’s identification of Saldana, although equivocal on cross- examination, failed to support the jury’s finding Saldana was the robber. (See People v. Mayfield (1997) 14 Cal.4th 668, 800 [Although discrepancies “undermined the strength of [the victim’s] in court identification of defendant, . . . the credibility of [the victim’s] identification testimony was properly submitted to the jury”]; People v. Sanders (1963) 217 Cal.App.2d 606, 610 [“[T]hat the testimony of the prosecuting witness was in some respects contradictory is not sufficient to warrant a reversal”].)
Moreover, Singh’s identification of Saldana as the robber was not uncorroborated. Officer Rand retrieved the video tape of the robbery and reviewed it with Singh. As Singh stated during his testimony, the tape showed that, although the robber was wearing a hood over a beanie, his face was exposed. In addition, the tape showed that the robber was wearing, as he had during other robberies, distinctive white tennis shoes with dark laces. Finally, Singh’s description of the robber’s conduct was consistent with that given by other victims. During the late night or early morning hours, Saldana entered the store, pulled out a gun and ordered an employee to give him all the money in the cash register. (See People v. Thompson (1957) 147 Cal.App.2d 543, 546 [“[T]here was ample evidence to support the jury’s determination that both robberies were perpetrated by the same person and that that person was defendant. . . . The modus operandi of the criminal was the same . . .”].)
Substantial evidence supports the jury’s finding Saldana was the individual who robbed Singh.
2. Detective Vairo’s testimony does not require reversal.
At trial, Detective Vairo (Vairo) testified that, during the course of his investigation of the attempted robbery at Majers Liquor and Check Cashing store, he was able to determine the owner of the firearm used during the offense. After contacting the owner of the weapon, then processing information through the police department’s computers, Vairo was directed to Saldana. Vairo then testified, “I ran – once again continued to run him into our computer system at the Police Department, obtained [Saldana’s] last booking photo, which was in 2003, and placed it in a photo lineup.” On November 8, 2005, Vairo showed the photographic line-up to Majers. Majers, however, was unable to make an identification.
Vairo then testified that he “[d]id some, little more follow-up, continued on with over the next few days, several days, in between [his] other caseload, [and] was able to find a more current photo.” Defense counsel objected and asked to approach for a side bar with the reporter. The trial court indicated it did not believe that was “necessary,” and the proceedings continued. Vairo testified he placed the more recent photograph of Saldana in a photographic line-up and showed the photo display to Majers. This time, Majers identified the photograph of Saldana and stated he was “absolutely positive” the photograph was of the man who had attempted to rob him.
Later in the proceedings, after the jury had left the courtroom, defense counsel indicated she wished to make a motion for a mistrial. Counsel stated, “We have a detective who has been an officer for 24 years. He knows he’s not supposed to bring up whether or not my client has any prior arrests or convictions. And he just outrageously makes a – testifies that the photo he picked was from a prior booking photo. And then he does it a second time when he set up for the second photo lineup.” Counsel continued, “We bifurcated this case. That’s the whole purpose. They are to judge him on this case alone, not on what might have happened prior to this case.”
The following colloquy then occurred: “The Court: I prevented him from saying the second time a booking photo. [¶] [Defense Counsel]: I know you did. But there is no question the jury knows where it came from. [¶] The Court: He just stated a photo, that he found another – he found a photo. [¶] [Defense Counsel]: We all know where that came from. We all know from the context of his prior testimony and what he was about to say that we know where it came from. But even with the one comment, I’m still making my motion [for a mistrial].”
The trial court denied the motion, stating, “Obviously, it is prejudicial. There is no question about that. It’s whether or not the prejudicial effect is so great that it requires a mistrial. [¶] [I] [d]on’t believe so. I believe it’s inherent in any of these photo six-pack cases that where the police compile six-packs that they, they get the photos from someplace. You know, photos just don’t drop out of the sky, so they get photos, photographs, from someplace and they make the six-packs. And I think the jurors are somewhat aware of that.”
Saldana contends that Vairo’s comment regarding the booking photo was so prejudicial that it requires the reversal of all counts and that the trial court erred in denying his motion for a mistrial.
Citing Evidence Code section 1101, Saldana first argues that evidence of his “other crimes” was inadmissible. He urges “[a]dmission of other-crimes evidence cannot be justified by the mere assertion of an admissible purpose – the particular evidence must be relevant to the ultimate fact in dispute.” Here, Vairo’s comment did not amount to evidence of “other crimes.” Although from Vairo’s testimony, that he had used Saldana’s “last booking photo,” the jury could conclude Saldana previously had been arrested, it could not conclude that Saldana had been convicted of a crime. Moreover, even if Vairo’s testimony had indicated Saldana had committed a particular offense, the evidence would not necessarily require reversal. In People v. Ewoldt (1994) 7 Cal.4th 380, 403-405, the court determined the trial court did not abuse its discretion when it allowed evidence of uncharged misconduct, the molestation of defendant’s stepdaughter. So too, in People v. Rose (1996) 46 Cal.App.4th 257, 264, it was determined that the inadvertent receipt by the jury of a police report concerning the defendant’s alleged surreptitious videotaping of an adult female coworker, which had been excluded from the evidence, did not require reversal. In People v. Harris (1994) 22 Cal.App.4th 1575, 1580-1581, the court determined it was not reversible error to deny a motion for a mistrial when a witness inadvertently mentioned the appellant’s parole status.
Evidence Code section 1101 provides in relevant part: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character . . . (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act.”
Saldana asserts this was a close case because defense counsel’s motion for acquittal pursuant to section 1118.1 was granted as to a count alleging grand theft of a firearm (count three), the jury deadlocked on counts four and five, which charged carjacking and the robbery of a single victim, and during deliberations the jury submitted to the trial court a number of questions. However, because the evidence was insufficient as to some counts, it cannot be concluded it was less than substantial as to the counts on which the jury returned verdicts of guilty. With regard to the robbery of Devinder Singh, Singh gave to the responding police officer a detailed account of the robbery and of the physical appearance of the robber which apparently accurately described Saldana. As to the robbery of Haider Zaidi, the evidence was overwhelming. Both Claudia Cruz and Angelica Contreras gave detailed accounts of the robbery and positively identified Saldana as the robber. In addition, the Dodge Stratus Saldana had used during the robbery was later discovered by a ranger in Griffith Park. Saldana’s right thumb print matched a latent print lifted from the outside of the Stratus’s driver’s side door. As to the robbery of Balkar Singh Deol (Singh), the evidence, as explained above, was substantial. Finally, the evidence of the attempted robbery of Mike Majers was overwhelming. Majers gave a meticulous account of the attempted robbery, including how he “slapped” the firearm away from Saldana. Majers identified Saldana in the second photographic line-up and positively identified Saldana in court as the man who had attempted to rob him.
With regard to Saldana’s assertion the trial court erred in denying his motion for a mistrial, we note the denial of such a motion is reviewed for abuse of discretion. “[A] motion for mistrial should be granted only when ‘ “a party’s chances of receiving a fair trial have been irreparably damaged.” ’ ” (People v. Ayala (2000) 23 Cal.4th 225, 282; People v. Panah (2005) 35 Cal.4th 395, 444.) “The motion should be granted only if the trial court is informed of the prejudice and it judges the prejudice to be insusceptible of being cured by admonition or instruction.” (People v. Panah, supra, at p.444.) “In making this assessment of incurable prejudice, a trial court has considerable discretion.” (People v. Davis (2005) 36 Cal.4th 510, 554.)
Here, the trial court properly determined Vairo’s passing remark regarding the booking photo failed to cause Saldana irreparable harm. As stated above, the evidence against Saldana was substantial and, in some instances, overwhelming. It cannot be said Saldana’s chances of receiving a fair trial were irreparably damaged by Vairo’s testimony. Under these circumstances, the trial court properly exercised its discretion when it denied Saldana’s motion for a mistrial. (People v. Davis, supra, 36 Cal.4th at pp. 553-554.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.