Opinion
D048366
4-23-2007
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY E. CARO, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Johnny E. Caro appeals from a judgment entered following jury convictions for robbery (Pen. Code, § 211) and attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1)). In a bifurcated trial, Caro admitted that he had one prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)(1)), and three prior probation convictions (§ 1203, subd. (e)(4)). The court sentenced Caro to an aggregate prison term of 12 years and four months.
Caro contends there was insufficient evidence identifying him as the person who committed the robbery and attempted to dissuade a witness. We conclude the jurys findings were based on substantial evidence and affirm the judgment.
FACTUAL BACKGROUND
Charles Hanscom and his friend, Isaac Frisk, were walking to Frisks home when they approached a house with three or four people smoking cigarettes outside. The street was dark and lit only by street lamps. After they passed the group, they heard the sound of people coming up behind them. One of the men, later identified as Caro, walked in between Hanscom and Frisk and told Hanscom and Frisk he was from the Escondido police and they were to go with him. When Hanscom and Frisk did not take him seriously, Caro ask them if they wanted to get shot. Hanscom became scared and asked Caro if he wanted money. In response, Caro got within four inches from Hanscoms face and said "Yes, I want your money." As Hanscom reached into his wallet to remove five dollars to give to Caro, Caro grabbed the wallet and told Hanscom that if Hanscom went to the police, he would kill Hanscoms family.
Hanscom and Frisk flagged down an officer and told her that Hanscom had been robbed. Both Hanscom and Isaac gave the officer a description of the perpetrator. The perpetrator was described as a Hispanic male in his early 20s with a shaved head and a little goatee/mustache. He was wearing baggy blue shorts, a black hooded sweatshirt covering part of his face, sunglasses that sat on his forehead, and white knit gloves. Hanscom and Frisk also described the perpetrator as approximately 5 feet 4 inches tall and weighed roughly 128 pounds. Additionally, they told the officer what house the perpetrator went to following the robbery.
After officers went to the house, officers took Hanscom to an alley where one officer asked him to identify his robber, but told him to be 100 percent certain. Hanscom identified Caro as the person who robbed him — he was 100 percent certain Caro was the robber. Although not provided in Hanscom and Frisks description, Caro had the letters "ES" tattooed above his left eyebrow, a teardrop on his right eye, three dots on his left eye, as well as some kind of tattoo on his neck. Caro was also 5 feet 11 inches tall and weighed 165 pounds.
At trial, Hanscom and Frisk identified Caro as the person who robbed Hanscom. Frisk testified that he saw the tattoos the night of the robbery. The officer who detained Caro for the witness identification also recalled tattoos on Caro, but could not remember if they were on his head or neck.
To cast doubt on Hanscom and Frisks identification of Caro, Thomas MacSpeiden testified as an expert witness on eyewitness fallibility. MacSpeiden provided testimony discussing research, which showed that jurors were easily influenced by a confident witness despite the validity of the eyewitness testimony being low. He testified that there is a lack of correlation between accuracy and certainty. He also testified that a curbside lineup is not very favorable because it is very suggestive — only one alternative is presented and the witness knows officers have someone in mind. Specifically, the fact that the identification in the present case was done at the scene of the crime with the person found at the scene increased the suggestive influence over the identification.
DISCUSSION
Caro contends the identification evidence was insufficient to prove he committed the charged offenses because the victims identifications were inherently improbable and factually impossible. We disagree.
Our review of any claim of insufficiency of the evidence is limited. "In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that 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. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Bolin (1998) 18 Cal.4th 297, 331.) If the evidence presented below is subject to differing inferences, the reviewing court must assume that the trier of fact resolved all conflicting inferences in favor of the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 326.) A reviewing court is precluded from making its own subjective determination of guilt. (Id. at p. 319, fn. 13.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hale (1999) 75 Cal.App.4th 94, 105.)
Caro claims Hanscom and Frisks identifications are suspect because of the disparity between their initial description of Caro and Caros actual appearance. Hanscom and Frisk described Caro to the police as being 5 feet 4 inches tall and about 128 pounds. Caros actual height and weight was 5 feet 11 inches tall and nearly 165 pounds. Caro also notes that Hanscom and Frisk failed to mention in their initial description of Caro that he had noticeable facial tattoos.
Hanscom and Frisks initial imprecise description of Caro to the police and omission of noticeable facial traits is not fatal to the prosecutions case. Such inaccuracies go to the weight of the evidence, not its sufficiency. It was up to the jury to determine the strength or weakness (i.e., credibility) of Hanscom and Frisks identification of Caro. (People v. Turner (1983) 145 Cal.App.3d 658, 671, disapproved of on another ground in People v. Majors (1998) 18 Cal.4th 385, 411; People v. Fagalilo (1981) 123 Cal.App.3d 524, 530-531.) If credited by the trier of fact, the testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to sustain a conviction. (People v. Keltie (1983) 148 Cal.App.3d 773, 781-782; Turner, supra, Cal.App.3d at p. 671; Evid. Code, § 411.) "Testimony is not inherently improbable unless it appears that what was related or described could not have occurred. [Citations.] 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.] [Citations.]" (People v. Johnson (1960) 187 Cal.App.2d 116, 122, see also People v. Barnes, supra, 42 Cal.3d at p. 306.)
Here, there was nothing inherently incredible or physically impossible in the eyewitness identification of Caro. Thus, Hanscom and Frisks identification of Caro was sufficient to support Caros convictions of robbery and attempt to dissuade a witness. Hanscom and Frisk testified they observed Caro when he robbed Hanscom. Though it was dark, the street lights allowed Hanscom and Frisk to get a look at Caro. Their description of Caros dress and appearance were accurate. Caro was wearing blue shorts, a black sweatshirt, and a white glove. Hanscom and Frisk also accurately described Caros facial hair — Caro had a tuft of hair on his chin similar to a goatee. Additionally, Hanscom identified Caro the night of the robbery, and Hanscom and Frisk identified Caro in court.
Not only is in-court eyewitness identification alone sufficient to sustain the conviction (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497), but in addition: "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (Ibid.) Furthermore, "evidence of a single witness is sufficient for proof of any fact." (Ibid., citing Evid. Code, § 411; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.)
At trial, Hanscom identified Caro and noted that Caro appeared taller. He explained that at the time of the incident, he and Frisk were walking up a hill and the incline could have made the difference as to height. Hanscom also testified that Caro was wearing baggy clothing which could explain the difference as to weight. Further, although the street was illuminated by street lights, Caro covered part of his face with the hood of his sweatshirt which could explain Hanscom and Frisks failure to describe Caros facial tattoos. Regardless, Caro went to great lengths to discredit Hanscom and Frisks identification by focusing on the height and weight disparity and Caros tattoos. Caro even called an expert to testify regarding the fallibility of witness identifications. However, the jury found the identifications credible. We are not permitted to second guess the trier of fact. Accordingly, any disparity between Hanscom and Frisks description of the perpetrators height and weight to Caros height and weight is not fatal to the identification; nor is their failure to describe Caros facial tattoos. There is sufficient identification evidence supporting Caros convictions.
DISPOSITION
The judgment is affirmed.
We Concur:
McCONNELL, P. J.
AARON, J. --------------- Notes: Unless otherwise noted, all statutory references are to the Penal Code.