Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. KA077436. Tia Fisher, Judge. Affirmed.
David D. Martin, 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, Susan D. Martynec and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant George Andrew Lobato was convicted of attempted second robbery with three “strike priors.” He was sentenced to 41 years to life in prison pursuant to the “Three Strikes” Law. He contends that his conviction must be reversed due to insufficiency of the evidence. We reject the contention and affirm.
FACTS
1. Prosecution Evidence
About 7:45 a.m. on December 16, 2006, 15-year-old S.S. was simultaneously walking to El Monte High School, talking to her boyfriend on her cell phone, and eating chocolate. She was not paying attention to the people around her. The strap of her purse was over her left shoulder, and her left thumb was on the purse.
A man on a bicycle approached S.S. from behind, going “very fast.” He grabbed onto her purse and kept going. The purse caught in the crease of her elbow. The man lost his grip on the purse and grabbed her hand. The bicycle’s handlebars never touched her. She was dragged two or three feet and fell to the ground. She scraped her knee but kept her purse. The man rode off on the bicycle. The whole incident lasted “ten to fifteen seconds.”
As the man rode away, S.S. observed that he wore a brown jacket, blue jeans, black boots, and a black beanie. She called 911 on her cell phone, reported the incident, and described the man’s clothing. Two patrol officers arrived while she was still on the phone with the 911 operator.
Meanwhile, a few blocks away, Officer James Singleterry stopped appellant for riding his bicycle on the wrong side of the street. Appellant said he was riding that way because “he was in a hurry.” Singleterry’s police radio announced the attempted robbery nearby and described the perpetrator. Appellant overheard the broadcast and blurted out, “Hey, I just bumped into that lady. I didn’t try to take her purse.”
Officer Singleterry contacted the officers who were with S.S. and told them he might have their suspect in custody. S.S. was driven to see appellant and was given the usual admonishment about a field identification. Only a few minutes had passed since the incident. She identified appellant based on his clothes and size. He was six feet one inch tall and weighed 210 pounds. She was five feet two inches tall and weighed 110 pounds. At the trial, she testified that she could not identify anyone, as she had not seen the man’s face during the incident.
Two days after the incident, S.S. was approached at school by another student, R.P., who was about a year older. R.P. told S.S. what she had seen, and she repeated that information at the trial. Shortly before the incident, she was inside her car, stopped at the intersection of Asher Street and Utah Avenue, a few blocks from the school. She saw S.S. walking south on Utah Avenue toward Mildred while talking on her cell phone. Closer to R.P., a man who looked “scruffy” was standing by a bush and staring at S.S. He had dark hair and facial hair. His hands were in his pockets. R.P. did not see a bicycle, but she did not look toward the bushes to see if a bicycle was there. R.P. considered offering S.S. a ride, but decided to simply drive on to school.
After R.P. heard about the incident and spoke to S.S. at school, she was interviewed by a police detective. When shown a photo lineup that included appellant’s photo, she selected that photo. At the trial, she did not identify him. She testified that she selected his photo because it showed a “scruffy” man who had dark hair, facial hair, and no tattoos.
Following his arrest, appellant made this statement to the police detective: He was riding his bicycle on the sidewalk and did not have enough room to pass S.S. The handlebars of his bicycle became entangled with the strap of her purse and her arm as he rode by her. He used his hands to disentangle the strap. He did not try to take her purse, and did not remember whether she fell to the ground.
Appellant also told the detective that he lived near Valley Boulevard and Temple City Boulevard, was currently working on a construction project a few blocks southeast of the school, and was near the school because he wanted to see if there were Christmas activities scheduled at a nearby park. When asked if he had any additional information, he said: “I know it is a lame excuse, but that is my story.”
2. Defense Evidence
Appellant testified that the information he gave the detective about his residence and workplace was correct. He approached S.S. from behind on his bicycle, going “at a good speed.” She was “[z]ig-zagging” on the sidewalk while talking on her cell phone. He said, “Excuse me.” She moved to the right, so he thought she was making a passage for him on the left. As he came closer, “she veered back to the left.” His handlebars become shaky, which meant he had gone onto the grass. He brought out a hand or an arm to stabilize himself, bumped into her purse, and caught the strap. His momentum never lessened. He stabilized himself, got back onto the concrete sidewalk, and continued riding. He did not know that she had fallen to the ground.
There was a dispute at trial about whether the route appellant took that day was the most direct route he could have taken between his residence and his work. There was no dispute about where he lived and worked. When his opening brief was filed, appellant requested judicial notice of: (1) the exact address of the Jiffy Lube shop at the intersection of Valley Boulevard and Temple City Boulevard in Rosemead, and (2) the maps of Rosemead and El Monte, California.
During his testimony, appellant denied making some of the statements the police officers attributed to him. He also denied that he was ever in the area on foot that morning. He admitted that he had been convicted of a “theft-related felony” in 1992, another such felony in 1993, and a residential burglary in 1993.
The above information was all that the jury learned about appellant’s prior criminal record, which was actually far more extensive.
Finally, Dr. Robert Shomer, an expert in the area of eyewitness identification and perception, discussed psychological factors that can skew perception of an incident and affect subsequent memory of it.
DISCUSSION
Appellant contends that there was insufficient evidence that he intended to take S.S.’s purse. He maintains that he has been sentenced to 41 years in prison for a bicycle accident. That was his version of the incident, but it was not S.S.’s version. Utilizing the appropriate standard of review (People v. Catlin (2001) 26 Cal.4th 81, 139), we find substantial evidence to support appellant’s conviction for attempted robbery.
Identity was not an issue, since appellant admitted that he was the man who sped by S.S. on the bicycle. Appellant gave two different versions of what happened, however. He told the detective that his handlebars caught in S.S.’s purse strap. After S.S. testified that the handlebars never hit her body, he testified that his hand caught in the strap when he tried to steady himself. His conflicting versions made it easy to discredit his testimony.
S.S. testified that appellant grabbed onto her purse with his hands and held on to it, dragging her, but failed to take it from her because the strap caught in her elbow. That testimony, standing alone, was sufficient to establish appellant’s intent to take the purse.
S.S.’s evidence was strengthened by R.P.’s selection of appellant’s photo as the man who looked most like the man she saw staring at S.S. R.P.’s evidence supported the inference that, after noticing that S.S. was a small person who was not paying attention, appellant decided it would be easy to snatch her purse.
Appellant argues that he could not have been the man R.P. saw before the incident, and R.P. must have seen that man after the incident occurred. He points out that R.P. testified that she was at the corner of Asher Street and Utah Avenue when she saw S.S. walking south on Utah Avenue toward Mildred Street, but S.S. testified on cross-examination that the incident occurred on Asher Street, and she turned afterwards onto Utah Avenue and walked south toward Mildred Street. We note, however, that S.S. had previously testified on direct examination that the incident occurred while she was walking on Mildred Street toward Utah Avenue. The jury could reasonably infer that S.S. was confused about the names of the streets on which she walked but R.P. had no confusion about what she saw.
We therefore reject appellant’s contention that there was insufficient evidence to sustain his conviction.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., BIGELOW, J.
We previously deferred a ruling on appellant’s motion for judicial notice. Respondent has not objected to it. The motion is granted.