Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA088585, Thomas I. McKnew, Jr., Judge.
Lawrence R. Young & Associates and Lawrence R. Young for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Jorge Aguilera pled guilty to one count of possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1), one count of possession of an assault weapon in violation of section 12280, subdivision (b), and one count of possession of marijuana for sale in violation of Health and Safety Code section 11359. He was convicted, following a jury trial, of one count of attempted murder in violation of Penal Code sections 187 and 664, one count of shooting from a motor vehicle in violation of section 12034, subdivision (c) and two counts of assault with a deadly weapon in violation of section 245, subdivision (a)(1). The jury found true the allegations that appellant personally discharged a firearm in the commission of the attempted murder and assaults within the meaning of section 12022.53, subdivisions (b) through (d).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the verdict and that the prosecutor committed misconduct in the presentation of evidence and during closing argument. Respondent contends that the judgment must be modified to add a court security fee pursuant to section 1465.8 to the judgment. We modify the judgment to add court security fees, as set forth in detail in our disposition. We affirm the judgment of conviction in all other respects.
Facts
On the afternoon of March 12, 2005, Manuel Ortega participated in a drive-by shooting at appellant's residence. He was arrested minutes after the crime, following a high-speed chase. Ortega was released on bail on March 14, 2005.
On December 15, 2005, Ortega pled guilty to charges related to the shooting and was sentenced to five years in state prison.
On March 21, 2005, Ortega was in front of his home with his girlfriend Mirna Moreno, their three-year-old daughter Esmeralda and Mirna's brother Juan Moreno. Appellant drove by the house and fired at the group 11 times. Ortega was shot in the back, Juan was shot in both legs, and Esmeralda was shot in one leg. Bullets also struck the house behind the group.
Los Angeles County Sheriff's Deputies arrived at the scene. Ortega and Juan told Deputy Farmer that the shooter was Hispanic and was driving a blue four-door sedan. Mirna described the shooter as fat and dark-complected.
On March 24, 2005, after being contacted by Detective Mayberry, Mirna clarified that the shooter was a dark-complected Hispanic, not an African-American, as police had been assuming. She stated that she would be able to identify the shooter if she saw him again.
Detective Mayberry later learned that Ortega was suspected of shooting at appellant's home. He assembled two six-pack photographic line-ups, one of which included a photograph of appellant. The other line-up included a photo of appellant's brother Juan Aguilera. Detective Mayberry showed Mirna the line-up with appellant's photo. She immediately selected appellant's photo and said his name was George, he was the shooter and she knew him from the neighborhood. When Detective Mayberry asked Mirna why she had not disclosed this information earlier, Mirna replied that she could not do so in front of Ortega. Mirna also pointed out Juan Aguilera's photograph and said that he was appellant's brother but was not involved in the shooting.
On April 19, 2005, sheriff's deputies executed a search warrant at appellant's home. They found an assault rifle and ammunition in the garage. A bullet found in Moreno's home immediately after the shooting could have been fired from that rifle.
At trial, Ortega denied any memory of either shooting, including denying knowledge of whether his daughter had been hit by a bullet. Mirna denied being able to identify appellant. She claimed that she did not remember her statements to sheriff's deputies. Mirna admitted that she was testifying only because she was being forced to do so. She had previously been arrested for failing to obey a subpoena.
Appellant's mother, Maria Moreno, testified that on March 21, 2005, appellant and his family lived with her in her trailer home. Appellant was home with her, taking care of his infant son. It was only in April 2006, with help from Laura Amaro, that Maria remembered that appellant had been with her that day. Amaro was the mother of appellant's children.
Appellant's stepfather, Juan Campero, testified that appellant was at the trailer when he returned home at 3:00 p.m. on March 21 and did not leave that afternoon. Campero did not reveal this information to anyone until April 2006.
Amaro testified that she returned home about 5:00 p.m. on March 21 and that appellant, Maria and Juan Campero were there. Amaro's memory on this topic was refreshed in April 2006.
Discussion
1. Sufficiency of the evidence
Appellant contends that the only direct evidence of identification was Detective Mayberry's testimony that Moreno identified appellant from a six-pack photographic line-up as the shooter, and that this evidence was offered for impeachment only. Moreno testified at trial that she had made a mistake when she identified appellant as the shooter. Appellant concludes that Detective Mayberry's testimony is not reasonable, credible and of solid value. We do not agree.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"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.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.)
The trial court did not limit the use of Detective Mayberry's testimony. It is well settled that a prior inconsistent statement of a witness is admissible to prove its substance as well as to impeach the declarant. (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4.) More specifically, an out-of-court identification which is not confirmed at trial can serve as substantial evidence to support a judgment. (People v. Cuevas, supra, 12 Cal.4th at pp. 272-277.)
"'The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.'" (In re Robert V. (1982) 132 Cal.App.3d 815, 821.) It was for the jury to decide who and what to believe.
2. Prosecutorial misconduct
Appellant contends that the prosecutor committed misconduct during closing argument. Appellant has forfeited this claim by failing to object and request an admonition in the trial court. (People v. Maury, supra, 30 Cal.4th at p. 418.) He has not demonstrated that an objection or admonition would have been futile. Assuming that the claim was not forfeited, we would see no misconduct.
"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 971.)
"Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each party's interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument." (People v. Huggins (2006) 38 Cal.4th 175, 207.)
Appellant points to the following three sections of argument related to Mirna to show misconduct:
(1) "And someone's fear, okay someone's obvious, obvious disdain for this whole system because of what she's been put through, is circumstantial evidence of why someone would come here, take an oath to tell the truth and then lie. I don't remember, I don't remember, oh, I don't remember. I don't remember. Okay. And we'll go into that a little more extensively. But circumstantial evidence is just as sufficient as direct evidence."
(2) "So when you analyze that issue, when you have to consider, well, maybe she got it wrong, maybe it was another dark-complected male Hispanic in L.A. County, look at those factors, and then add in the rifle and then add in the motive. Her testimony alone could be sufficient because her earlier statement was true. But she cannot come to court and point him out because at the end of the day, whether she told you or not, she has concerns, and you know what those concerns are."
(3) "Witnesses – some witnesses who are street savvy, if you will, know that, listen, when the cops come, don't talk, because they may know what happened. They are dragged, if you will – excuse the word – through the system and put in a very difficult situation. [¶] One of the most difficult things for us as prosecutors is really the sense of betrayal that some of these witnesses feel against the system, knowing that witnesses like Mirna Moreno, who may see a crime, some day may never speak of it again; who may – knowing that someone like Mirna Moreno, who has to raise children, may not teach their children to trust the police because of what she's gone through. She may say, listen, call 911 if there is an emergency, but once the ambulance gets here, don't say anything else."
Appellant contends that there was no evidence that Moreno was afraid or concerned, and no evidence about the reluctance of witnesses in general to cooperate. He concludes that the prosecutor's comments amount to testimony on these subjects, in an attempt to discredit Moreno's testimony at trial.
Ample evidence was admitted on these subjects during trial, and the prosecutor's remarks constitute fair comment on that evidence.
Moreno did not identify appellant as the shooter until March 31. Moreno knew appellant by sight, by the name George, and also knew his brother Juan. When Detective Mayberry asked Moreno why she did not provide this information earlier, she stated that she could not do so in front of Ortega. Ortega also knew appellant, and refused to cooperate in the shooting investigation. At trial, he claimed not to remember anything about the shooting except that he was shot and others were somehow injured. It is reasonable to infer from this evidence that Ortega did not want Moreno to identify appellant, and that Moreno thus had concerns about identifying him.
Moreno herself testified that she did not want to be in court and had come only because she was forced to. Detective Mayberry testified that when he arrested Moreno because she failed to appear in court, Moreno told him that "she was in fear for her and her family's safety and she didn't want anything to happen, anything further to happen to her or her family."
Detective Mayberry testified that he did not tell Moreno before the March 31 identification that she would possibly have to come to court. He explained that he usually did not tell witnesses before an identification that they might have to come to court because "It's my experience that I get – I do not get the cooperation or truthfulness out of victims or witnesses."
Appellant's reliance on People v. Alvarado (2006) 141 Cal.App.4th 1577 to show error is misplaced. In that case, the prosecutor stated: "'I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crimes occurred. [¶] The defendant charged is the person who did it.'" The Court found that the prosecutor "impermissibly invited the jury to convict [the defendant] based on her opinion that he was guilty and on the prestige of her office." (Id. at p. 1585.) Here, the prosecutor was merely stating his belief, based on all the evidence, that Moreno was telling the truth when she spoke with Detective Mayberry. There was nothing improper in that.
Appellant also points to four other comments by the prosecutor which he contends were not based on the evidence, used the prestige of his office and the State to attempt to improperly influence the jury and interjected the prosecutor's own evidence as testimony. In no case did the prosecutor testify, refer to evidence outside the record or refer to his office or the State of California.
The first comment was "This is not a case of self-defense." Appellant omits the rest of the comment, which was that the shooting in this case occurred on March 21, and so could not be self-defense in response to the shooting of appellant's family on March 12. This is clearly a correct statement of the law. Further, appellant offered an alibi defense, that he was with family members at the time of the March 21 shooting. He did not claim self-defense, and the jury was not instructed on self-defense.
The second comment was "Attempted, willful, deliberate, premeditated, attempted murder? Definitely. Whoever shot at Manuel Ortega and the people there in front in the kill zone, or at this home, attempted to kill someone. Not an issue." It is perfectly proper to argue that the manner of the killing shows willfulness, deliberation and premeditation. As for the phrase, "not an issue," it was part of the prosecutor's argument that he had proven all the elements of the case. This is a common, acceptable argument. The phrase was also part of the prosecutor's argument that the real issue in the case was not what happened, but who committed the crimes. The prosecutor argued: "The real issue here is identification." We see nothing improper in this.
The jury convicted appellant of only one of the three attempted murder counts. On the other two counts, jurors convicted appellant of the lesser included offense of assault with a deadly weapon. Clearly, they were not persuaded by this argument.
The third comment was the prosecutor's reference to race as a factor in evaluating the reliability of identification. The jury was instructed pursuant to CALCRIM No. 315 that in evaluating an eyewitness identification, the jury should consider a number of questions, including: "Are the witness and the defendant of different races?" Thus, the prosecutor's argument was proper.
The fourth comment was "And based on this case, the only possible verdict is one of guilty. That is justice. We may not like it, but that's what you've agreed to do. Consider the evidence, arrive at your conclusions, and reject the unreasonable." This is simply an argument that based on the evidence, appellant was guilty. It was not improper.
3. Appellant's criminal history
The trial court excluded evidence of appellant's prior felony conviction. Appellant contends that the prosecutor violated the court's order and committed misconduct by referring to appellant's criminal history. Appellant has forfeited his claim by failing to object and request an admonition in the trial court. (People v. Maury, supra, 30 Cal.4th at p. 418.) He has not demonstrated that an objection or admonition would have been futile. Assuming that the claim was not forfeited, we would see no misconduct.
Appellant contends the allusion to his criminal history occurred when Detective Mayberry testified that he placed a photograph of appellant in a six-pack photographic line-up. He claims the fact that the detective had a photo of appellant was a "strong indication" that appellant had a criminal record. Even assuming for the sake of argument that this inference was reasonable, a trial court's ruling precluding evidence of a defendant's prior criminal history cannot reasonably be understood as excluding any evidence of the defendant's identification in a photographic line-up.
Detective Mayberry did not testify about how he came into possession of appellant's photograph. He did testify that he included a photograph of appellant in the six-pack photographic line-up because another police officer was investigating a shooting where appellant was the victim. Thus, the most reasonable inference was that the detective had a photo of appellant because he had been the victim of a crime.
4. Security fees
Respondent contends that the trial court erred in failing to impose a $20 security fee pursuant to section 1465.8 for each conviction in this case. We agree.
A $20 fine must "be imposed on every conviction for a criminal offense." (§ 1465.8, subd. (a)(1); see People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371 [court security fee is imposed even if punishment is stayed on the conviction].) Appellant was convicted of seven offenses. Seven security fees must be imposed, for an additional $140 in security fees.
Disposition
A court security fee of $20 is imposed on counts 1, 2, 3, 4, 5, 6, and 8 pursuant to section 1465.8, subdivision (a)(1). The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting these additional fines and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
We concur: TURNER, P. J., KRIEGLER, J.