Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CF2416, Richard W. Stanford Jr., Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
A jury found Antonio Herrera Barragan guilty of attempted second-degree robbery, two counts of aggravated assault with a deadly weapon, and misdemeanor possession of false government documents. Barragan admitted he had a prior strike conviction and had previously served time in prison. On appeal, he argues the evidence was insufficient to support the attempted robbery or assault with a deadly weapon charges. He also challenges the court’s refusal to stay his sentence on the attempted robbery conviction pursuant to Penal Code section 654. Finding his contentions lack merit, we affirm the judgment.
I
In July 2005, Filemon Ramirez and his cousin Alberto Ramirez were driving together to visit Filemon’s brother, Genaro Rodriguez. After they stopped at a stop sign, Barragan approached the car and loudly asked Filemon for money. Filemon rolled down his window about two inches to better hear what Barragan was saying. Barragan repeated his demand for money and took out a baseball bat that was hidden under his arm. He hit the car with the bat. Afraid, Filemon got out of the car. Barragan swung the bat and hit Filemon’s arm, causing it to become swollen and bruised. He then smashed several of the car windows.
For the sake of clarity, we will refer to Filemon Ramirez and Alberto Ramirez by their first names.
Alberto exited the car at the same time as Filemon. After breaking the windows, Barragan struck Alberto with the bat. Alberto put up his hands to protect his head, and was hit on the arms. Barragan then dropped the bat and pulled out a knife. Alberto ran away, but fell down and injured his knees. Barragan then ran away, leaving a cell phone behind.
Filemon picked up Barragan’s bat and cell phone and drove to an automobile repair shop to get the windows replaced. The next day, Filemon and Alberto reported the attack to the police. They handed over the bat and cell phone, as well as the automobile shop’s business card where they had the windows replaced. The police officer saw bruises on Filemon’s hands, and bruises on Alberto’s arms. A few days later, when Filemon saw Barragan at a restaurant, he called the police. Barragan was arrested. The police discovered false government identification documents in an envelope behind the counter where Barragan was standing. Barragan did not appear to be injured.
The police interviewed Barragan who claimed his friend, who lived in Mexico, named Armando, asked him to collect money from Filemon’s brother, Rodriguez for a social security card he had purchased. He claims he saw Filemon, Rodriguez, and Alberto at the intersection and asked them for the money. They refused to pay. He denied having a baseball bat or knife at the time. He did not tell the police that he was chased or attacked by anyone the previous day.
Defense Case
Alberto and Filemon gave confusing and sometimes conflicting testimony as to the sequence of events. For example: (1) Filemon testified he was driving Alberto’s car because Alberto felt tired and asked him to drive. Alberto testified Filemon was driving because they had just left Filemon’s house and he offered to drive; (2) Filemon testified Barragan approached after they had gone through the stop. Alberto recalled Barragan walked over while they were stopped at the stop sign; (3) Filemon testified he got out of the car and was hit before Barragan broke any of the windows. Alberto testified Barragan broke the windshield before Filemon got out of the car and before he got hit; (4) Filemon recalled that at the same time he saw Barragan take out the bat, he saw the knife. Alberto saw the knife after Barragan broke the windows and dropped the bat; and (5) After the attack, Filemon said he drove the car to an automobile glass repair shop and waited two hours at the shop for the work to be done. He recalled they drove the car home that day. Alberto testified the car was dropped off at the shop because it was about to close, and they returned the next day to pick it up. He told a police officer a different story, stating he took the car to be repaired the day after the incident.
Barragan produced two witnesses who claimed they saw Barragan being attacked by Filemon, Alberto, and Rodriquez that day. Ezekiel Solis lives next door to Rodriquez and they were drinking buddies. Solis recalled he was sitting in a parked car when he saw four men hitting Barragan, who was on the ground. He saw Barragan run away, and Rodriquez and his relatives were chasing him. Solis did not see anyone hitting a car with a baseball bat, and did not hear glass breaking. Solis had several convictions, including robbery and lewd conduct with a minor. He was in prison when he spoke to Barragan, and agreed to help by testifying he knew Barragan was not at fault. It was Solis who provided the public defender’s investigator with information on where to find Filemon and Rodriquez to interview them.
Nelson Rivas, another resident in the area, testified that sometime in July 2005 he saw Barragan on the ground and a group of four or five men were beating him. He recognized one of the assailants as Rodriquez. At the time he testified, Rivas was in jail for felony driving under the influence, involving a hit and run offense. Rivas had met Barragan while they shared a holding cell together in jail.
The police did not collect or analyze fingerprint evidence from the cell phone or baseball bat. The police did not discover any broken glass at the scene of the incident or inside the car.
II
Barragan argues there is no credible evidence he assaulted or attempted to rob anyone. He asserts the only evidence to support these charges came from the contradictory and improbable testimony of the complaining witnesses, Filemon and
Alberto. He maintains the lack of physical evidence of broken glass or the serious physical injuries one would reasonably expect after being hit with a baseball bat, further demonstrates the crimes were inherently improbable.
“‘When a defendant challenges the sufficiency of the evidence, the test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. [Citations.] Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citation.]’ [Citation.] Moreover, ‘“[i]f the circumstances reasonably justify the [conviction], the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination. . . .” [Citations.]’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 180.)
As to Barragan’s contention Filemon’s and Alberto’s testimony was inherently improbable, we must apply the well settled rule: “‘Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] 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.]’ [Citations.]” (People v. Thornton (1974) 11 Cal.3d 738, 754, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
The record reflects Filemon and Alberto offered different versions of the sequence of events relating to the incident. But, contrary to Barragan’s contention, they did not relate “completely different stories.” It was the same basic story that was retold from different perspectives and in a slightly different order of events. According to the reporter’s transcript, both witnesses testified through the aid of interpreters, which may have played some role in the discrepancies. And, as aptly stated by the Attorney General, the fact “there might have been some discrepancies or mis-recollection of this chaotic scene” does not render their testimony impossible to believe or obviously false.
We note, Barragan was given the opportunity to attack the credibility of these witnesses at trial. And as stated above, the jury’s credibility determination is not reviewable on appeal. (See People v. Cantrell (1992) 7 Cal.App.4th 523, 538 [“The question of the apparent inconsistency [in the victim’s testimony] was, thus, placed before the jury. It was the jury’s prerogative, and not this court’s, to resolve it”].)
Barragan also contends there is a “glaring” lack of physical evidence to support the charges. We disagree. The prosecution did present physical evidence. Filemon asserted the front and back windows were replaced and gave the police a business card from the repair shop. A police officer confirmed that when he saw the vehicle, he noticed there was blue tape around those same windows, “placed there because the window had been replaced.” The officer did not see tape around any other windows.
Moreover, there was evidence supporting the victims’ claims they were hit and injured. Without supporting expert medical testimony, it cannot be said the victims would necessarily have suffered broken bones from the attack as Barragan contends. There were photographs and testimony regarding bruising on the arms and hands of the victims, consistent with their efforts to defend and protect their heads against the blows.
In light of all the above, we conclude this was certainly not an iron clad case and it called on the jury to make several credibility decisions. Because we cannot reweigh the evidence, and we must presume all inferences in favor of the judgment, it cannot be said there was insufficient evidence to support the convictions for attempted robbery and two aggravated assaults.
III
Relying on Penal Code section 654, Barragan asserts the court abused its discretion by failing to stay the sentence on count 1 (attempted robbery of Filemon) because it was part of the same transaction as count 3 (aggravated assault against Filemon). We disagree.
Penal Code “section 654 prohibits ‘[p]unishment for two offenses arising from the same act . . . .’ [Citation.] ‘Insofar as only a single act is charged as the basis for the conviction . . . the defendant can be punished only once.’ [Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) “‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’” (Id. at p. 1208, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) “We must ‘view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
As correctly noted by Barragan, when an assault is the means by which the objective of robbery is accomplished, a defendant should not be punished for both crimes. (See People v. Medina (1972) 26 Cal.App.3d 809, 824; People v. Flowers (1982) 132 Cal.App.3d 584, 589.) The cases cited by the Attorney General hold an assault that occurs after a robbery is completed may be found to have a different objective or motivation. (See e.g., People v. Coleman (1989) 48 Cal.3d 112, 162-163 [having essentially completed a robbery and a murder, the defendant stabbed the robbery victim with the separate intent of preventing her from reporting the murder].) Similarly, an assault occurring after the robbery is nearly complete or one committed to facilitate the getaway can show different intents. (See People v. Watts (1999) 76 Cal.App.4th 1250, 1265 [at time of the assaults the victims had begun to comply with assailants’ demands and it was therefore separate from the means used to commit the robberies]; People v. Foster (1988) 201 Cal.App.3d 20, 27-28 [after store employees gave defendants all money in the register, defendants locked the victims in the store’s cooler; court found false imprisonment separately punishable from the robbery as the robbery was already complete at the time].)
This case does not fit neatly into any of those categories. The robbery was not completed. And there was no indication these victims ever intended to comply with Barragan’s demands for money. Indeed, Barragan testified he was initially told by the victims to “F off.” We recognize there is some evidence, from which it can be inferred, the assault was merely the means of accomplishing or facilitating the intended robbery, but there was also evidence suggesting Barragan’s intent changed once it became clear he would not be collecting the old debt for his friend in Mexico. After Filemon exited the car, Barragan did not continue to ask for money. Instead, he caused extensive damage to the car as well as bruising the victims. It was reasonable for the court to conclude Barragan had a separate intent and objective for this assault.
IV
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.