Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. CR48751. J. Richard Couzens, Judge. (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Ronda G. Norris, 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, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury convicted defendant Jose Duran of first degree murder (count 1—Pen. Code § 187, subd. (a)) and found true an allegation that he had caused the death of the victim as a result of discharging a firearm from a motor vehicle (§ 12022.55). The court imposed an aggregate sentence of 31 years to life consisting of an indeterminate term of 25 years to life on count 1 and six years consecutive on the enhancement. On appeal, defendant contends that substantial evidence fails to support his conviction for murder. In addition, defendant maintains the court erred in imposing an unauthorized six-year consecutive term for the enhancement, because, at the time of the murder, the statute provided for only a five-year sentence. The People concede, and we agree, that the sentence on the enhancement must be amended to provide for a five-year consecutive term. In all other respects the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On March 20, 1993, between 9:00 and 10:00 p.m. Francisco Mendez and his brother, the victim, went out to a local bar. Mendez testified that he frequented the bar once or twice a month, but this was the first occasion he had brought his brother. While at the bar, the victim played pool with other people, including two or three games with defendant. Defendant was accompanied at the bar by another man. Mendez testified he had previously seen defendant at the bar three or four times over the past five or six months. The victim and defendant engaged in a verbal and physical altercation. Mendez intervened and separated the two. Defendant and his companion left about 10 minutes thereafter. Mendez and the victim remained at the bar for between two and a half to three hours after the altercation. They left the bar when it closed around 2:00 a.m. They were the last customers to leave.
Mendez variously testified that they arrived at the bar at 9:00 p.m. and at 10:00 p.m. A deputy sheriff testified that Mendez told him they had arrived at the bar at 9:30 p.m.
An investigating officer testified that Mendez told him that the victim and defendant only engaged in a hostile verbal exchange.
Mendez reported to the investigating officer that he and the victim left 45 minutes after the altercation.
As they walked to Mendez’s car, Mendez noticed another car parked immediately next to his on the passenger side of his vehicle. Two men were in the car: defendant was seated in the driver’s seat while his companion was in the passenger side. Mendez walked to the driver’s side of his car, opened the door, and got inside. The victim went to the passenger side where he was standing outside, slightly in front of the passenger side door. Defendant and the victim then exchanged “words.” Mendez walked over in between the victim and defendant in an effort to defuse the situation. He then moved towards the back of his car.
Defendant backed his vehicle out of the parking space and pulled back in. Defendant then fired several pistol shots, hitting the victim. Mendez testified that defendant pointed the gun at him after shooting his brother. Mendez ducked down against his car. Defendant fired one shot at him, but missed. Defendant then drove off.
An investigating officer testified that Mendez reported being seated in his car when the shooting occurred.
Mendez placed the victim in his car and began driving home where he intended to call for help. Mendez was pulled over by police. He informed the officer about the condition of the victim. The officer called an ambulance. The officer dragged the victim from the car to check for signs of life, but did not find any. Emergency workers brought him to the hospital. Hospital staff attempted to revive the victim, but he was pronounced dead shortly thereafter.
Officers responding to the bar found six.45-caliber shell casings and two live.45-caliber rounds. The shell casings and projectiles were collected and lodged into evidence. They also found bullet holes in an adjacent business and blood splatters on the sidewalk leading into the dirt parking lot.
The victim incurred seven gunshot wounds which were all directed in a right-to-left and slightly upward angle consistent with having been received while in a standing position, by a person shooting from a seated position. Two of the gunshot wounds were lethal. The coroner determined the cause of death to be multiple gunshot wounds and the manner of death a homicide. The coroner removed bullets from the victim’s body which were lodged into evidence. A criminalist examined four of the recovered bullets and determined that they all came from the same gun. He also examined the two shell casings and likewise determined that they came from the same weapon.
Mendez described defendant’s vehicle to investigators as a black 1980s two-door Ford Mustang. He informed officers that the vehicle contained two Hispanic males wearing white T-shirts and jeans. Mendez indicated that he could identify the shooter. He also reported that defendant had taken a shot at him. Defendant’s mother told investigators in April 1993 that defendant drove a black, two-door Ford. On April 2, 1993, officers conducted a photographic lineup containing pictures of six individuals (a “six-pack”) with Mendez at his home. Mendez immediately identified defendant as the individual who shot the victim.
One deputy testified that Mendez never indicated defendant took a shot at him.
Along with corresponding enhancements, defendant was charged with the first degree murder of the victim (count 1—§ 187, subd. (a)) and attempted first degree murder of Mendez (count 2—§§ 664/187, subd. (a)). The jury found defendant not guilty on count 2.
DISCUSSION
A. Substantial Evidence on Count One
Defendant contends substantial evidence does not support his conviction for first degree murder. Defendant concedes that the testimony of a single witness is sufficient to uphold a conviction or establish any given fact. He furthermore acknowledges that a jury is entitled to believe parts of a witness’s testimony, but disregard others. Nevertheless, he essentially contends that Mendez’s testimony, particularly when compared to his previous reports to law enforcement officials and their testimonies, was so fraught with inconsistencies that it was inherently incredible, such that it must be entirely disregarded and the conviction reversed. We disagree.
The standard of review for claims of insufficiency of the evidence is well settled: “‘A reviewing court... determines “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.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘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.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141; overruled in part on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved of on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant accurately submits that his conviction on count 1 hinged on witness identification. Defendant essentially parses through the record, underscoring any evidence that was favorable to him and pointing out inconsistencies only where the evidence was unfavorable. However, defendant’s characterization of the evidence adduced at trial does not comport with our standard of review which, as noted above, requires us to view the evidence in a light most favorable to the judgment. The record here is indisputably sufficient to demonstrate the reasonableness of the jury’s determination when viewed in the proper light.
Mendez testified that he frequented the bar where the incident occurred one to two times a month during the previous year. He had observed defendant at that bar three or four times during the previous five to six months. He informed an investigating officer that he had seen defendant at both that bar and another bar on previous occasions. Mendez watched defendant play two or three games of pool with the victim that night. He testified that he observed defendant and the victim were together for between 15 and 20 minutes. Mendez intervened when defendant and the victim engaged in an argument. When they left the bar, Mendez recognized defendant as the driver of the vehicle that was parked immediately next to his own. Mendez got into his own car, but exited it in order to walk between the victim and defendant to defuse the situation. Mendez stepped to the back of his car and watched as defendant pulled his car out of and then back into the parking space. He then watched defendant fire several shots hitting the victim. Mendez testified that he was only 10 to 12 feet away from defendant when the shooting occurred.
Mendez informed an investigating officer on the night of the incident that he could identify the shooter. Two weeks after the incident, Mendez immediately identified defendant as the shooter from a six-pack photographic line-up. He made an in-court identification of defendant as the shooter on one occasion prior to trial. Mendez identified defendant as the shooter during trial. Mendez testified that he had no doubt defendant was the person who shot the victim. Thus, substantial evidence supported the jury’s inherent determination that defendant was the shooter when it convicted him of the first degree murder of the victim.
Nonetheless, we shall address each of defendant’s issues with the evidence adduced at trial. Defendant contends that numerous inconsistencies in the evidence combine to demonstrate the improbability of Mendez’s testimony such that it must be disregarded entirely. First, we disagree with defendant’s contention that the jury’s acquittal of defendant on the count 2 charge automatically reflected a finding that Mendez was lying. An acquittal does not necessarily equate with a determination that the jury found that defendant was factually innocent; rather, it may merely mean that the jury found insufficient evidence with which to convict defendant of a particular charge beyond a reasonable doubt. (People v. Palmer (2001) 24 Cal.4th 856, 865; People v. McCann (2006) 141 Cal.App.4th 347, 354.)
Here, Mendez testified at trial that defendant pointed the gun at him after shooting his brother. Mendez ducked down against his car. Defendant then fired one shot at him, but missed. One investigating officer who interviewed defendant the night of the incident testified that while Mendez did not say “‘[a] shot was taken at me,’” he did say that “they had been shot at,” (italics added) i.e., both he and the victim. Moreover, the officer indicated that the “interview wasn’t that in[-]depth,” that he “didn’t really clarify that point,” and that “[a]t that point, I was just trying to get suspect information.” However, another investigating officer testified that Mendez never reported being shot at. Two officers testified that Mendez was upset and crying. Thus, the jury may have simply determined that it could not find, beyond a reasonable, doubt that defendant had, in fact, attempted to kill Mendez. Moreover, it similarly could have reasonably determined that Mendez was justifiably distraught by the circumstances such that he feared for his life although no such danger was actually present. In the latter situation, Mendez would not have been lying, but would have been merely confabulating.
As to defendant’s other enumerated inconsistencies, none of these slight discrepancies established that the primary subject of Mendez’s testimony, the identity of defendant, was improbable. Indeed, the vagaries of human memory and perception would make it exceedingly unlikely that a witnesses to an event occurring over 14 years earlier could accurately testify and report identically as to each and every minute detail. Contrary to defendant’s assertion, defendant did in fact inform an investigating officer, defendant’s own witness, that the victim and the shooter had engaged in some degree of an altercation at the bar prior to the shooting. It is true that Mendez testified he observed an initial physical altercation between the victim and defendant at the bar, while the officer testified Mendez told him he had only seen the victim and defendant engage in a verbal argument. Nevertheless, both testimonies establish that Mendez witnessed some degree of animosity expressed between the victim and defendant, such that his ability to identify defendant was sufficiently established regardless of the nature and extent of antipathy expressed between the two.
Mendez testified he stayed at the bar for two to three more hours after the altercation, but reported to the investigating officer that they left after 45 minutes, Mendez testified that he was standing towards the back of his car when the shooting began, but the investigating officer testified Mendez told him he was inside the car at the time. These would appear to be relatively trivial differences in the context of the focus of his testimony, i.e. who committed the shooting, particularly when Mendez had sufficient time to identify defendant prior to getting into his car. Mendez testified he could see clearly in the parking lot; however, an officer testified that the lighting conditions were very poor and that it was difficult to see without flashlights and lights from the patrol cars. Likewise, the bar owner’s son testified that the parking lot was dark. Nevertheless, it is certainly possible that the lights of both defendant’s and Mendez’s cars were on, enabling him to see well enough to identify defendant. Moreover, the aforementioned individuals testified there were street lights on across the street. Furthermore, while Mendez and the victim may have been the last customers to leave the bar, they were not the last persons to leave. The bar owner’s son testified that he was the last person to leave the bar. Therefore, it would be rational to infer that the bar’s lights may still have been on when Mendez first witnessed defendant sitting in his car. Finally, Mendez testified he was only 10 to 12 feet away from defendant. Thus, the jury could reasonably infer, regardless of the lighting conditions, that Mendez was sufficiently close to identify defendant.
Defendant notes that Mendez admitted having between four and five beers; however, it is rational to infer that even to someone who did not regularly drink, five beers over a period of four to five hours would not significantly impair an individual’s ability to identify defendant under these circumstances. Moreover, Mendez admitted to patronizing this particular bar one to two times a month, while the bar owner’s son testified he was there “[j]ust about every day.” This would, of course, support a reasonable inference that Mendez was a regular drinker with a concomitant level of alcohol tolerance. Defendant points to the discrepancy in the degree of Mendez’s patronage of the bar as further reason to disregard his testimony in toto, but again, this is a relatively trivial matter. Finally, defendant notes that the bar owner’s son testified that no verbal or physical altercation in the bar came to his attention on that particular evening. However, he also testified that if an argument had occurred between two people at one of the pool tables he would not necessarily know about it because he sometimes went to check the bathrooms or stepped outside. He furthermore testified that his memory of that night was “not that good,” and that he just remembered “bits and parts.” Thus, the jury could reasonably discount his testimony that no altercation occurred that evening.
In sum, despite some incongruities in the testimony as to the occurrences of that evening, substantial evidence supported Mendez’s identification of defendant as the shooter and hence, defendant’s conviction for first degree murder.
B. Sentencing on the Enhancement
The court sentenced defendant to a consecutive term of six years on the enhancement for discharge of a firearm from a motor vehicle. (§ 12022.55.) While the statute currently provides for a triad of punishment on the enhancement consisting of five, six, or ten years; at the time of defendant’s commission of his crimes, the statute only provided for a consecutive five-year term of incarceration. (Former § 12022.55; added by Stats. 1987, c. 1147, § 2.) Therefore, defendant contends that imposition of a six-year consecutive term is barred by federal and California constitutional prohibitions against ex post facto punishment. Hence, he maintains the six-year sentence must be stricken and the lawful term, five years, imposed. The People concede the issue. We agree.
The retroactive imposition of an aggravated punishment based upon a statutory change violates federal, constitutional ex post facto principles. (People v. Frazer (1999) 21 Cal.4th 737, 756-757; overruled on other grounds in Stogner v. California (2003) 539 U.S. 607.) “[A]n unauthorized sentence is subject to correction on review.” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3.) Here, the court imposed an unauthorized sentence on the enhancement because, at the time defendant committed the instant crime, the statue provided only for imposition of a consecutive five-year term. The trial court is directed to amend the minute order and abstract of judgment to reflect imposition of a consecutive five-year sentence on the enhancement.
DISPOSITION
The trial court is directed to prepare an amended sentencing minute order and abstract of judgment reflecting imposition of a five-year consecutive sentence on the section 12022.55 enhancement. The trial court is further directed to deliver a certified copy of the amended minute order and abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: RAMIREZ, P. J., GAUT, J.