Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA280017. David M. Mintz, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Marcos Abraham Estopani appeals from a judgment entered after the jury found him guilty of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/187, subd. (a)); assault with a semiautomatic firearm (§ 245, subd. (b)); and misdemeanor battery (§ 243, subd. (e)(1)). The jury found true the allegations that defendant personally used and discharged a firearm, personally inflicting and proximately causing great bodily injury (§§ 12022.53, subds. (c), (d); 12022.7, subd. (a)), and that defendant personally used a firearm and personally inflicted great bodily injury (§§ 12022.5, subd. (a)(1); 1203.06, subd. (a)(1); & 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
CONTENTIONS
Defendant contends: (1) there was insufficient evidence that defendant shot Terrelle Anderson (Anderson); (2) his right to due process and fair trial were violated by the People’s withholding of exculpatory material evidence; and (3) defendant was deprived of effective assistance of counsel because counsel failed to request an instruction regarding the untimely disclosure of evidence.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following. On March 8, 2005, at 11:00 p.m., Anderson was walking toward his pickup truck to move it for street cleaning. Fifteen-year-old Andrea C. ran toward Anderson, yelling “help me,” and grabbed him. Defendant, who was cursing at and chasing his girlfriend Andrea, grabbed her and hit her in the face with his closed fist. Andrea fell to the ground. Anderson told defendant, “You shouldn’t hit a lady.” Defendant told Anderson to stay out of his business, grabbed Andrea’s purse from the ground, and ran to a nearby house. Anderson helped Andrea up and asked if she was okay. A Hispanic woman walked up to Anderson, explained that defendant was her nephew, and assisted in helping Andrea up.
A short time later, defendant returned with another male Hispanic and confronted Anderson as he was getting into his truck. Defendant wore a white T-shirt and blue jeans, and the other man wore a long sleeved sweatshirt. Defendant asked Anderson “What the fuck do you think you’re doing? Who do you think you are?” The man with him joined in. Anderson said he did not want to cause trouble, that this was not his problem, and that he was leaving. Anderson got into his pickup truck, backed up, and was driving away when he saw defendant run up to the truck on the passenger side. Anderson was shot four or five times from the passenger side. Anderson looked up to see defendant in front of his car, pointing at him with his arm raised. Defendant fled, and Anderson, feeling light headed and nauseous, went to a neighbor’s house and called 911.
Anderson described defendant and his companion to police officers who detained defendant based on Anderson’s description. Anderson, who was being treated in the ambulance, identified defendant as the shooter in a field show-up. Defendant’s hands tested positive for gunshot residue.
At the police station, defendant told Los Angeles Police Officer Hector Marquez that he had been upset because Anderson told him not to hit girls after he slapped Andrea. He claimed that his friend, “Maniac,” was the shooter. But, defendant did not describe him, saying he did “not want to rat out his homey.” The next day, defendant denied knowledge of the shooting, denied that he heard any shots, and denied having a gun. But, when confronted with his previous statements by Los Angeles Police Department Detective Janine Manji, defendant confirmed that he had told Officer Marquez that “Maniac” was the shooter. He told Detective Manji that “Maniac” was five feet eight inches tall, weighed 180 to 190 pounds, had a dark complexion and a tattoo of a large bunny on his back, and that he had known him for two weeks.
Officer Marquez testified at trial that he gave Detective Manji a booking photo, rap sheet and other information about a Playboy gang member, Edwin Maqueos, who was known as “Shrek Maniac.” Anderson was shown a photo lineup containing a photograph of “Shrek Maniac.” However, Anderson did not identify anyone in the lineup.
During Officer Marquez’s testimony, defense counsel objected on grounds of due process based on the failure of counsel to disclose the rap sheet of “Shrek Maniac.” The trial court found that nondisclosure of “Shrek Maniac’s” personal information did not violate section 1054.1 because the information was not exculpatory or statements of a witness whom the People intended to call at trial. The trial court denied defendant’s motion to dismiss, motion for mistrial, and request for a 14-day continuance to locate “Shrek Maniac.” The trial court found there had been no due process violation because there was no showing that “Shrek Maniac” was the same person as “Maniac,” or that he could provide any potentially exculpatory information even if he could be located. The trial court also found that there was no showing of materiality, because it was inconceivable that even if found, “Shrek Maniac” would waive his right to remain silent or testify that he was the shooter.
Defense counsel also objected on grounds of untimely disclosure pursuant to section 1054.1, subdivisions (e) and (f) based on the belated disclosure of information about the photographic lineup shown to Anderson. The trial court agreed that the photographic lineup and Anderson’s statement on his witness card that he could not identify anyone fell within section 1054.1, subdivision (f). As a remedy, the trial court ordered Anderson to remain on call, thus being subject to recall as a witness for cross-examination on those issues.
On cross-examination, Anderson testified that he was also shown a binder of photographs. The trial court denied defendant’s request for a dismissal, finding that because Anderson could not identify “Shrek Maniac’s” photograph in the lineup or binder of gang photos, disclosure would have made no difference. Defendant’s subsequent motion for new trial based on the nondisclosure of the personal information, photographic lineup, and binder was denied.
DISCUSSION
I. Whether There Was Insufficient Evidence That Defendant Was the Shooter and Therefore Attempted to Murder Anderson
Defendant contends that the People failed to produce sufficient evidence that defendant shot Anderson because Anderson’s statements to officers and testimony during trial were inconsistent.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. 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.’ [Citations.] [¶] . . . But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury.” (People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.) We do not reweigh the evidence; even if the circumstances “might reasonably be reconciled with a contrary finding[, this] would not warrant reversal of the judgment.” (People v. Proctor (1992) 4 Cal.4th 499, 529.)
“‘“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. Allen (1985) 165 Cal.App.3d 616, 622-623, overruled on other grounds in People v. Berry (1993) 17 Cal.App.4th 332, 338-339].) “Further, a jury is entitled to reject some portions of a witness’ testimony while accepting others. [Citation.]” (People v. Allen, supra, at p. 623.) “Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate. [Citation.]” (Ibid.) “[A]bsent physical impossibility or inherent improbability, the testimony of a single eyewitness is sufficient to support a criminal conviction.” (Ibid.)
Our review of the record shows that the evidence was sufficient to support the jury’s finding that appellant was the shooter. Anderson had a clear, full view of defendant when he ran up to him and struck Andrea. He also had a clear view of defendant when he returned with his friend to confront Anderson, and also when he ran up to Anderson’s truck right before he was shot. Anderson was able to provide descriptions of both men and their clothing to the police, who detained defendant based on the description. Anderson immediately and without hesitation identified defendant as the shooter within minutes after the shooting, as well as at trial. Furthermore, defendant’s hands tested positive for gunshot residue.
Nevertheless, defendant urges that Anderson’s statements varied with respect to his description of defendant, defendant’s cohort, defendant’s aunt, and whether defendant held a gun, the sequence of events, and the location of a stop sign. He also contends that the darkness, the short duration of the incident, the presence of two men, cross-racial identification, suggestive field identification, carryover effect of Anderson’s first identification, and the failure to recover a gun, show that the People’s evidence was not sufficiently reasonable and credible to convince a trier of fact that defendant was guilty beyond a reasonable doubt.
We disagree. Differences among trial testimony, the preliminary hearing, and statements made to police, are the type of inconsistencies which jurors are free to resolve according to their best judgment. (People v. Allen, supra, 165 Cal.App.3d at p. 625.) Moreover, the jury not only was instructed as to factors to consider in evaluating the reliability of the identification evidence and the credibility of lay witnesses, but had the benefit of expert identification testimony to consider. Defendant’s argument is merely an invitation for us to reweigh the evidence, which we decline to do.
We conclude that the evidence adequately supported the jury’s finding that defendant was the shooter and intended to murder Anderson.
II. Whether Defendant’s Fifth, Sixth and Fourteenth Amendment Rights to Due Process and to a Fair Trial Were Violated by the People’s Withholding of Exculpatory Material Evidence
A. Constitutional Claims
Defendant contends that the People knew the identity of “Maniac” and his whereabouts, but deliberately withheld this exculpatory information from the defendant, depriving him of his constitutional right to due process and a fair trial. He also contends that the People violated section 1054.1, subdivisions (e) and (f) when it withheld the photographic lineup that contained “Shrek Maniac’s” photo.
“The constitutional duty of disclosure arises under Brady v. Maryland (1963) 373 U.S. 83, [83 S.Ct. 1194, 10 L.Ed.2d 215], in which the United States Supreme Court held ‘the prosecution must disclose to the defense any evidence that is “favorable to the accused” and is “material” on the issue of either guilt or punishment.’” (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366-367.) Evidence is favorable if it helps the defendant or hurts the prosecution, as in impeachment. (Id. at p. 367.) Evidence is material if there is a reasonable probability of a different result. (Ibid.) A reasonable probability means whether in the absence of evidence that was not disclosed, the defendant received a fair trial. (Ibid.)
“[T]o obtain discovery under section 1054.9 . . . within the scope of section 1054.1(e) and/or Brady, a defendant must do more than simply assert . . . that the materials he seeks might include ‘evidence of third party culpability.’” (Kennedy v. Superior Court, supra, 145 Cal.App.4th at p. 372.) “[T]he defendant must--at the very least--explain . . . how the requested materials would be relevant to show someone else was responsible for the crime.” (Ibid.)
With respect to his due process claims, defendant has not shown that the information regarding “Shrek Maniac” was potentially exculpatory, or that if disclosed, would have yielded material evidence leading to a reasonable probability of a different result. Defendant claims the People should have disclosed “Maniac’s” real identity and address. But, defendant does not explain how evidence of “Maniac’s” identity and address would result in a more favorable outcome. The alias is not in itself exculpatory, because there is no evidence that “Shrek Maniac,” and “Maniac” were the same person. Defendant described “Maniac” as dark-complexioned and bearing a large bunny tattoo on his back. Officer Marquez testified that “Shrek Maniac” was light-complexioned and did not have a tattoo. Furthermore, Officer Marquez was unable to locate “Shrek Maniac” after his release from jail. Indeed a warrant had been issued for his arrest. Thus, it is not even certain that “Shrek Maniac” was Maqueos and if he were found, even less certain that Maqueos would have admitted to being at the scene, much less the shooter.
Defendant’s contention that Maqueos could have provided exculpatory information, such as where he was standing when Anderson was shot, the sequence of events, and the condition of the car windows after they were shot out, is merely speculative. Therefore, even if the available information had been disclosed, it is not reasonably probable that the evidence would have led to a different result.
B. Section 1054.1 Claim
Section 1054.1, subdivision (e) requires the prosecutor to divulge to the defense material and information of exculpatory value in the possession of the prosecuting attorney or the investigating agencies. Subdivision (f) of that section requires the prosecutor to turn over all “relevant” statements of witnesses or reports of the statement of those whom the prosecutor intends to call at the trial. (§ 1054.1, subd. (f).)
The trial court determined that the photographic lineup, a binder of gang photographs, and Anderson’s witness card indicating that he was unable to identify anyone in the photo array constituted an untimely disclosed statement and report about a statement within the meaning of section 1054.1, subdivision (f). The trial court found that the statutory violation was harmless because Anderson did not recognize anyone in the lineup, and was subject to recall at trial for further cross-examination.
We agree with the reasoning of the trial court. The photograph of “Shrek Maniac” was not exculpatory pursuant to section 1054.1, subdivision (e) because Anderson could not recognize him or anyone in the photographic lineup or binder of photographs. And, even though the photographic lineup and witness card should have been disclosed to defendant under section 1054.1, subdivision (f), it is difficult to see what difference it would have made in the trial. While defendant urges that Anderson’s failure to identify a photograph of “Shrek Maniac” as the shooter did not eliminate “Shrek Maniac” as the actual shooter, the fact remains that Anderson’s inability to recognize him did not provide exculpatory value. Nor is there any basis for defendant’s argument that Anderson might have identified “Shrek Maniac” in person, rather than from a photograph.
We conclude that the nondisclosure of “Shrek Maniac’s” personal information, the photographic lineup, witness card, and binder of gang photographs did not deny defendant his right to a fair trial or cause him prejudice.
III. Whether Defense Counsel Provided Ineffective Assistance of Counsel by Failing to Request an Untimely Disclosure of Evidence Instruction
Defendant contends that his trial counsel was ineffective in failing to request a jury instruction related to the untimely disclosure of evidence. He complains that the instruction “could not have hurt [defendant’s] case”; there was no tactical reason for failing to request the instruction; he might have presented a different theory had the information been made available to him; the jury would have been more skeptical about the prosecution’s methods of investigation and of obtaining evidence if given the instruction; and that the jury may have believed that defendant was denied the chance to produce all relevant evidence and to counter opposing evidence or receive a fair trial.
In order to show ineffective assistance of counsel, the defendant must show that his counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and the defendant suffered prejudice such that in the absence of counsel’s failings, the result would have been more favorable to the defendant. (In re Jones (1996) 13 Cal.4th 552, 561-562.)
CALCRIM No. 306 instructs that both parties must disclose their evidence to the other side before trial, and in evaluating the weight and significance of that evidence, the jury can consider the effect of the late disclosure of a party. Defendant complains that his trial counsel must have misunderstood that the trial court did find a violation of section 1054.1, subdivision (f), and that CALCRIM No. 306 was therefore applicable. But, defendant’s trial counsel may have decided not to request the instruction because he believed the instruction may have unduly confused the jury, or highlighted the nonexculpatory nature of the evidence. Had the failure to request the instruction been a questionable tactical decision, it is not reasonably probable that defendant would have obtained a more favorable outcome if the instruction had been given. The testimonial and physical evidence that defendant was the shooter was overwhelming. And, evidence regarding Anderson’s failure to identify “Shrek Maniac” did not exculpate defendant. Therefore, an instruction that the jury could consider the prejudice caused by the late disclosure would not have resulted in any different outcome.
CALCRIM No. 306 provides: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: _____________ [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. [¶] [However, the fact that the defendant’s attorney failed to disclose evidence [within the legal time period] is not evidence that the defendant committed a crime.] [¶] [You must not consider the fact that an attorney for defendant ___________ failed to disclose evidence when you decide the charges against defendant[s] ___________.]”
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.