Opinion
B226462
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. ENOC GUTIERREZ et al., Defendants and Appellants.
Arthur William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Enoc Gutierrez Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant Waldo Daniel Orellana Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA352487)
APPEALS from judgments of the Superior Court of Los Angeles County. Anne H. Egerton, Judge. Judgments affirmed.
Arthur William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Enoc Gutierrez
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant Waldo Daniel Orellana
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent
Enoc Gutierrez and Waldo Orellana appeal from their convictions of second degree robbery. Gutierrez contends his conviction should be reversed because the court erred in failing to dismiss the entire jury panel after it determined that Orellana had challenged jurors based on group bias, in violation of People v. Wheeler (1978) 22 Cal. 3d 258. Both appellants contend that the identification testimony of the only eyewitness to the crime was so confused and contradictory that it cannot support their convictions. We reject those contentions and affirm the judgments.
FACTS AND PROCEEDINGS BELOW
Because this is an unreported opinion and the parties are familiar with the facts, we will dispense with their recitation here. To the extent they are relevant we discuss the facts in connection with our resolution of the issues.
DISCUSSION
I. THE TRIAL COURT WAS NOT REQUIRED TO DISMISS THE ENTIRE JURY PANEL DESPITE FINDING WHEELER ERROR
Under People v. Wheeler, supra, when any party in an action exercises its peremptory challenges to exclude members of a cognizable group based on bias against that group, an opposing party may request the court to dismiss all the jurors thus far selected and quash the remaining venire. (People v. Wheeler, supra, 22 Cal. 3d at p. 282.) In People v. Willis (2002) 27 Cal.4th 811, the court recognized that dismissing the remaining jurors and starting over might not always be an appropriate remedy. Therefore, the court held that "with the assent of the complaining party, the trial court should have the discretion to issue appropriate orders short of outright dismissal of the remaining jury, including . . . reseating any improperly discharged jurors if they are available to serve." (Id. at p. 821, italics added.)
In the case before us, counsel for defendant Orellana used her peremptory challenges solely to excuse Asian jurors. Upon granting the prosecutor's Wheeler motion, the court stated it would order that the last Asian juror challenged "remain seated, rather than dismiss the entire panel." On appeal, defendant Gutierrez argues that his conviction should be overturned because the court erred in reseating the juror as the remedy for the Wheeler violation without obtaining the prosecutor's assent.
We disagree. Although the court should have asked the prosecutor whether he agreed with the remedy of reseating the last challenged juror before making that order, the oversight was later remedied when the prosecutor stated that he had no objection to reseating the juror. The Court: "[T]echnically, Mr. Dean, I should have asked you at the time whether you were waiving the usual remedy which is replacement of the entire panel. I frankly just sort of assumed the lesser relief would be acceptable to you, and that's what I did." Mr. Dean: "I had no objection to that, your honor."
II. THE CONVICTIONS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE
Huncha Wilhelm was walking to her car at approximately 8:30 p.m. when two men ran up behind her. One man pushed her down and tried to grab her lunch bag; the other man grabbed her purse containing, among other items, a Bluetooth and a cell phone with her picture on it. A car pulled up, the two men got in, and the car drove away.
Wilhelm returned to her workplace and called 911. She reported the incident to the 911 operator, described the car and provided its license number as she remembered it.
At approximately 1:30 a.m. police stopped a car that matched the make and model given by Wilhelm. The car's license plate matched the license plate Wilhelm described except for one transposed letter. On the car's center console the police observed a cell phone with a woman's picture on it (later identified as Wilhelm) and a Bluetooth device. Gutierrez and Orellana were the only occupants of the car which was registered to Gutierrez. The police arrested them and took them to a police station where at 3:20 a.m. Wilhelm identified Orellana as the person who took her purse and Gutierrez as the driver of the get-away car.
In her discussions with the police and her testimony at trial, Wilhelm spoke mostly in Korean. Her statements were translated by a Korean-speaking police officer and at trial by a Korean language interpreter.
At a lineup two months after the robbery, Orellana was in position number 5 and Gutierrez was not present. Wilhelm identified the person in position number 4, not a suspect, as the person who pushed her down. After leaving the auditorium, however, Wilhelm told the investigating officers that she would have picked number 5, Orellana, as the person who took her purse but she felt rushed and did not know if she could pick more than one person in the lineup.
At a second lineup, a month after the first, Gutierrez was in position number 4 and Orellana was not present. Wilhelm identified the person in position number 5, not a suspect, as the person who took her purse. She selected Gutierrez and two others as possibly the person who pushed her down.
At trial, Wilhelm identified Gutierrez as the person who pushed her down and Orellana as the person who took her purse.
On appeal Gutierrez and Orellana maintain that their robbery convictions are not supported by substantial evidence because Wilhelm's identifications were uncertain and contradictory. We disagree.
In deciding a substantial evidence claim we view the evidence in the light most favorable to the judgment and credit all reasonable inferences from the evidence that support the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Although the evidence must be reasonable, credible and of solid value, it is the exclusive province of the trier of fact to determine the credibility of a witness. (Ibid.) The testimony of a single witness is sufficient to sustain a conviction, even if the testimony is internally inconsistent. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) Inconsistencies or lack of clarity in identification testimony are matters of credibility that must be resolved by the trier of fact. (People v. Rist (1976) 16 Cal.3d 211, 216.) We will reverse a conviction only when no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
Here, substantial evidence supports the jury's finding that Gutierrez and Orellana robbed Wilhelm.
At a show-up outside the police station and at trial Wilhelm positively identified defendants as the persons who robbed her. At the lineups, Wilhelm tentatively identified other persons as the perpetrators but she never eliminated Gutierrez or Orellana. At the first lineup, which included Orellana but not Gutierrez, Wilhelm selected a person who was not a suspect as the one who pushed her down but told the police afterward that she would have picked Orellana as the person who took her purse if she hadn't felt rushed and unsure whether she could select more than one person from the lineup. At the second lineup, which included Gutierrez but not Orellana, Wilhelm selected a person who was not a suspect as the one who took her purse but also stated that Gutierrez could have been the person who pushed her down.
The evidence, however, was not limited to Wilhelm's identifications. Her testimony was substantially corroborated by evidence that a few hours after the robbery the defendants were apprehended in the get-away car described by Wilhelm with Wilhelm's cell phone and Bluetooth in plain sight on the center console. The court instructed the jury that the possession of the robbery victim's recently stolen property supported by other evidence that "tends to prove . . . guilt . . . is sufficient to prove [the defendants] committed robbery." "The supporting evidence," the court instructed, "need only be slight and need not be enough by itself to prove guilt." Under these instructions the jury could reasonably conclude the defendants were guilty of robbing Wilhelm.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, J. We concur:
MALLANO, P. J.
CHANEY, J.