Opinion
B160364.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. DONTAY JOSEPH BACKUS, Defendant and Appellant.
Fay Arfa, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Dontay Joseph Backus appeals the judgment ( order granting probation) entered after conviction by jury of first-degree burglary. ( Pen. Code, § 459.) We reject Backuss claim of insufficient evidence and affirm the judgment but order the abstract of judgment corrected to award Backus one additional day of presentence custody credit.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecutions evidence.
On October 25, 2001, at approximately 11:00 a.m., Julia Solano left her apartment, number 130, on East 115th Street with her mother and went to apartment 119. Twenty minutes later, Blanca Duran, Solanos neighbor who lived in the apartment facing Solanos apartment, saw a male enter Solanos apartment through a window. The male then opened the door for three or four other individuals. Duran called 911 and a tape recording of the call was played for the jury.
When Solano returned to the apartment complex, Duran met her at the rear door of Durans apartment and told her people were in her apartment. Solano entered Durans apartment and saw a female in a white bathrobe enter Solanos apartment, then quickly exit carrying a package of 24 rolls of bathroom tissue. Three men exited the apartment. One of them had Solanos suitcase. Backus exited Solanos apartment laughing and holding Solanos scissors. Backus and the other individuals who had been in Solanos apartment went to the vicinity of apartments 123 and 124.
When Los Angeles Police Officers Alicia James and Ben McPheeters arrived, Solano described the people she had seen in her apartment. From inside Durans apartment, Duran and Solano viewed a field show up of the individuals in apartments 123 and 124. Duran and Solano both identified Backus. Officer James testified Duran was "terrified" the residents of apartments 123 and 124 would harm her if they saw the police in her apartment.
At trial, Duran testified she did not know Backus was the individual charged in this case until she saw him in court. Although Duran has moved from the apartment complex, she sometimes visits people there and she has seen Backus since this incident. Duran refused to identify Backus in court and testified she did not see Backus enter Solanos apartment and did not see Backus with the police on October 25, 2001. However, Duran testified she identified the correct person to the police on October 25, 2001.
Solano testified she was certain of her identification of Backus and told the police Backus was the individual who came out of the apartment laughing with Solanos scissors. Solano previously had seen Backus in the apartment complex. Solanos apartment had been ransacked. None of the property taken was recovered. Defense counsel cross-examined Solano about vines and screens obstructing her view. However, at the end of the exchange, Solano stated: "I could see them." Solano admitted she misidentified one of the females involved.
Officer James testified that from inside Durans apartment Solano and Duran had an unobstructed view of the suspects removed from apartments 123 and 124. Defense counsel specifically cross-examined James about the possibility vines blocked the view.
No scissors were found inside apartment 123 or 124.
2. Defense evidence.
Latanya Burrell testified that, from the window of her second floor apartment 142, she saw males she knows as Bobby Jones and "Head" burglarize Solanos apartment with other individuals Burrell has seen before. Burrell knows Backus and was certain he was not one of the individuals.
Backus testified he lives in apartment 47. On the day in question, Backus went to visit friends in apartment 124. Backus walked past two males who exited apartment 130 with a shopping cart. One of the individuals was Backuss cousin, Bobby Jones. When Backus arrived at apartment 124, he told his friends what he had seen and they went onto the porch to watch. After Jones and his companion entered apartment 130, a female known as Ree-Ree came out of apartment 130 with a package of bathroom tissue. Backuss friends told Ree-Ree not to enter their apartment because the police would be arriving soon. Backus and his friends returned inside apartment 124 until Backus heard a police helicopter, exited the apartment and was arrested. No property belonging to Solano was found in apartment 124.
CONTENTION
Backus contends the evidence is insufficient to prove he burglarized Solanos apartment.
DISCUSSION
1. The evidence supports the conviction.
Backus claims the testimony of the eyewitnesses was insufficient to support the conviction and, absent other reliable evidence, the conviction must be reversed. Backus notes the unreliability of eyewitness identification has been recognized in United States v. Wade (1967) 388 U.S. 218, 228 and People v. McDonald (1984) 37 Cal.3d 351, 369, and the problem is aggravated where the identification is cross-racial (People v. Cardenas (1982) 31 Cal.3d 897, 908). Here, Duran testified Backus was not one of the burglars, none of Solanos property was found in apartment 124 and no evidence corroborated Solanos identification. Backus concludes the conviction must be reversed.
We disagree. Backus merely repeats on appeal the same argument his attorney made to the jury, i.e., Solano and Durans view of the burglary and the field show-up was from a distance of 25 feet and was obstructed by curtains, a window screen and vines. However, whether the curtain or a vine obstructed Duran or Solanos vision was a matter for the jury to evaluate, not this court on appeal. In any event, from the record a reasonable trier of fact could conclude Solano and Duran were able to observe the burglary in progress and the field show up from Durans apartment. Solano specifically testified she was able to see through the curtains on Durans living room window.
When determining the sufficiency of the evidence to support a conviction the test is whether 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; People v. Johnson (1980) 26 Cal.3d 557, 576-578.)
In this case, Solano identified Backus at the field show-up and at trial and testified she previously had seen Backus in the apartment complex and that she was certain of her identification. The testimony of a single eyewitness identifying the defendant is sufficient evidence to support a conviction. (Evid. Code, § 411; People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Thus, even without Durans prior inconsistent statements identifying Backus, the evidence was sufficient to support the conviction of burglary.
Accordingly, the claim of insufficient evidence fails.
2. The abstract of judgment must be corrected.
At the time of sentencing, Backus had served 100 actual days. Based thereon, the trial court awarded 49 days of good time/work time credits. The People suggest Backus is entitled to one additional day of presentence custody credit. In the reply brief, Backus agrees and requests correction of the abstract of judgment.
The judgment shall be ordered corrected.
DISPOSITION
The judgment (order granting probation) is modified to award 150 days of presentence custody credit consisting of 100 actual days and 50 days of conduct credit and, as so modified, affirmed. The clerk of the superior court shall prepare an amended abstract of judgment.
We concur: CROSKEY, J. and KITCHING, J. --------------- Notes: Defense counsel argued both Solano and Duran made their observations through "cream-colored curtains" they could not pull back to get a better view, either at the time of the burglary or the field show up, because they were afraid of being observed by the burglars. Defense counsel noted there were shrubs in front of the window, there was a screen on the window, there were vines obstructing the view and the distance from Durans apartment to the field show up at apartment was substantial. Defense counsel repeatedly suggested "the vines, the screen and the distance" had caused Solano to err in her cross-racial identification of Backus. Defense counsel argued Solano and Duran operated under the tension between making an observation and not being seen by the people being removed from apartments 123 and 124.