Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. KA087494, Mike Camacho, Judge.
Ronald White for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
Edgardo Enrique Martinez appeals his conviction, after jury trial, of attempted robbery, robbery, possession of a short-barreled shotgun, carrying a loaded, unregistered firearm, and personally using a firearm during attempted robbery and robbery. Sufficient evidence supported the jury verdict, and we affirm.
BACKGROUND
An information filed August 6, 2009 charged Martinez with two counts of attempted second degree robbery in violation of Penal Code sections 664 and 211 (counts 1 & 3), one count of second degree robbery, in violation of section 211 (count 2), one count of possession of a short barreled shotgun in violation of section 12020, subdivision (a)(1) (count 4), and one count of carrying a loaded unregistered firearm, in violation of section 12031, subdivision (a)(1) (count 5). The information also alleged that Martinez personally used a firearm in counts 1 through 3, under section 12022.53, subdivision (b). Martinez pleaded not guilty and denied all allegations.
All subsequent statutory references are to the Penal Code.
At trial, Andy Garcia testified that on May 6, 2009 between 8:30 p.m. and 9:00 p.m., he was behind Simons Middle School in Pomona by the basketball courts, with his older brother Michael Garcia (who was skateboarding) and his cousin Manuel Segura. Three individuals approached them, including Martinez, who went to eighth grade with Andy. He did not know the other two. Martinez, who was wearing a checkered shirt, carried a shotgun in both hands. The second individual carried a knife, and the third individual carried an aluminum bat. Martinez asked Andy if he remembered him, and Andy answered yes. Martinez then asked what they had, and searched all three. Michael refused to give up his skateboard and his cellular phone. The individual with the knife asked Andy if he was from Olive Street, a gang. Martinez did not find Andy’s cellular phone, which Andy hid inside his boxers. After the individuals left, Andy called 911 on his cellular phone to report the robbery, and later that night Andy identified Martinez as the man with the shotgun. The jury heard an audiotape of the 911 call, in which Andy identified the man with the shotgun as “Rigardo, ” which he knew as Martinez’s name. On cross-examination, Andy testified that Michael was smoking marijuana, that Martinez took the marijuana, and that Martinez told him “‘This is 12th Street Gang.’” To Andy, “Ricardo” and “Edgardo” sounded the same.
For ease of reference, we refer to Andy and Michael Garcia by their first names.
The transcription of the 911 call given to the jury recorded the name as “Regardo.”
Manuel Segura testified that Martinez was one of the three individuals who approached them, and he was carrying a shotgun, while the other two carried a knife and a bat. The three “wanted our stuff.” Martinez was standing in front of Andy, and both Martinez and the individual with the knife patted down Segura, Andy, and Michael. Martinez took a small bottle of Bod cologne and some gum from Segura. After the three individuals left, Andy called 911 and Segura, Andy, and Michael went to the Garcia home. Later that night the police took Segura to another area, where he identified Martinez as the person with the shotgun. Segura also identified a bottle of cologne recovered from Martinez as the cologne that Martinez took from him. On cross-examination, Segura denied that he, Andy, or Michael smoked marijuana that day. At the preliminary hearing in July 2009, Segura had been unable to identify Martinez because his hair was different then. He thought Martinez was wearing checkered shorts at the time of the robbery.
Michael identified Martinez as one of the three individuals who approached Michael, Andy, and Segura on May 6, 2009. Martinez carried a shotgun and the other two carried a knife and a bat. The man with the bat came later. The man with the knife approached the three and asked them to give over their stuff, but although he held the knife to Michael’s neck, Michael did not give the man his skateboard or his cellular phone. Michael wasn’t sure if Martinez patted anyone down, but Martinez had pointed the shotgun at Michael’s face when he refused to surrender his skateboard. Martinez had some kind of personal issue with Andy. Later that night, at another location, Michael identified Martinez as the individual with the shotgun. On cross-examination, Michael denied that he, Andy, or Segura were smoking marijuana.
Officer Kevin Kline of the Pomona Police Department testified that at about 9:00 p.m. on May 6, 2009, he received a call about a robbery that had just taken place in Simons Park, with one of the suspects described as a male Hispanic wearing a checkered shirt and carrying a shotgun. As he drove toward the scene, Officer Kline saw three suspects walking northbound, with two on the west side of the street, one of whom was wearing a checkered shirt and carrying a shotgun. Officer Kline made a U-turn and tried to stop the two suspects. The other suspect ran, but the suspect carrying the shotgun, whom Officer Kline identified as Martinez, responded to verbal commands to drop the shotgun by dropping the gun into a planter. The shotgun was loaded with four shells, one in the chamber, and its overall length from the tip of the barrel to the stock was only 25 inches. Officer Kline also found a bottle of cologne in Martinez’s pocket. Martinez told Officer Kline that he started to run because he had a weapon, and that he was coming from Simons Park. Martinez was wearing a checkered shirt.
The parties stipulated that a search revealed no registered owner for the shotgun.
Officer Rory Tom-Hoon testified that Officer Kline gave him the bottle of cologne recovered from Martinez, and when he showed the bottle to the victims, Andy said it was his. Officer Tom-Hoon then drove each victim separately to a “field show-up, ” and all three identified Martinez as involved in the robbery. In his report, Officer Tom-Hoon wrote “Ricardo” as the name Andy gave for the person with the shotgun.
Martinez testified in his own defense. On the night of the incident, Ricardo Vasquez and one of his friends came to Martinez’s house and stayed for five minutes. Vasquez was carrying the sawed-off shotgun inside his pants. Martinez did not want the weapon in his house, so he left with Vasquez and Vasquez’s friend to take them back to Vasquez’s house. They went through the back of the school and saw Andy, Michael, and Segura. Without discussing it with Martinez, Vasquez took the shotgun out of his pants and approached Andy, who Martinez knew from school. Vasquez took some Bod spray and a little bag of marijuana from Andy, and gave them to Martinez, who put the Bod spray in his pocket. Martinez could smell marijuana. Vasquez’s companion had a bat, and Vasquez had a knife in his pocket which he took out after patting down Michael and Segura. Martinez did not speak to Andy, Michael, or Segura. He did not think Vasquez was going to do anything. Martinez, Vasquez, and his companion left and walked toward Vasquez’s house. Martinez was angry and told Vasquez he was an idiot to do what he did because Martinez was on probation. When the police car made a U-turn, Vasquez ran and jumped a fence, discarding the shot gun in a planter. When Officer Kline detained Martinez, he told the officer that the person who fled was Ricardo. Martinez did not tell Officer Kline that he had the gun. Martinez was wearing a checkered shirt that night.
The jury convicted Martinez on all counts and found true the firearm enhancement allegations. The trial court sentenced Martinez to a total of 23 years in state prison, as follows: five years on count 2 (robbery) and a consecutive ten-year firearm enhancement; two consecutive eight-month terms on counts 1 and 3 (attempted robbery) and two consecutive 40-month firearm enhancements. The court also imposed and stayed under section 654, two-year sentences on counts 4 and 5. Martinez received 259 days of presentence custody credit.
Martinez filed this timely appeal.
DISCUSSION
Martinez argues that there was insufficient evidence to support his conviction. We disagree.
“In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime... beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 638–639.)
Martinez argues that the evidence “strongly suggests” this was a case of mistaken identity. He points to his testimony and Andy’s 911 call naming “Rigardo” or “Regardo” as the perpetrator as evidence that “Ricardo, ” not Martinez, had the shotgun, and argues that he was the third and “reluctant” participant. Martinez also contends that the evidence was insufficient to support his conviction on a theory of aiding and abetting, because he was merely present at the scene and did not share “Ricardo’s” criminal intent. He suggests that the victims’ identification of him at the field show-up was either a product of discussion between them or the smoking of marijuana.
The jury was instructed on aiding and abetting, and the prosecutor argued in closing that even if the jury believed Martinez’s testimony, he was still guilty of aiding and abetting the robberies.
Martinez asks us to view the record in the light most favorable to him, reweigh the evidence, reevaluate the credibility of the witnesses, and redetermine the factual conflicts in his favor, crediting his testimony in its entirety and disregarding the testimony of the three victims. This asks us to substitute our judgment for that of the jury, and misunderstands our role in reviewing a claim that evidence was insufficient to support a conviction, which is limited to determining whether the jury’s verdict was reasonably justified by the circumstances, viewing the evidence in the light most favorable to the prosecution. (People v. Jennings, supra, 50 Cal.4th at p. 638.) In any event, the evidence strongly supports Martinez’s conviction. The jury verdict shows that the finder of fact credited the victims’ and Officer Kline’s testimony that Martinez was the man with the shotgun, rather than Martinez’s testimony. This was the province of the jury. Sufficient evidence supports Martinez’s conviction.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.