Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge, Super. Ct. No. 03CF0860
Patrick J. Hennessey, Jr., 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, Senior Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
SILLS, P. J.
There was a robbery at a Union Bank in Tustin inside a Ralph’s grocery store by a young light-skinned black man wearing a baseball cap and a flannel shirt. The robber approached a teller, set a plastic grocery bag on the counter, and told the teller to “fill it up.” The demand was backed up by what appeared to be the barrel of a handgun pointed directly at the teller, and the teller noticed the robber’s acorn-shaped and “very beady” eyes.
Just previous to the robbery, as she was headed to her office to eat lunch, a shift supervisor had noticed defendant Aaron Hardwick in the banking area, because the branch had many repeat customers and he was not one of them. A month after the robbery both the supervisor and the teller identified Hardwick in a photo line-up of six black males.
Hardwick was arrested for the crime, and, following a jury trial, was convicted on one count of robbery (Pen. Code, § 211) with a firearm enhancement. Hardwick received the low term of two years in state prison for the robbery, plus a mandatorily consecutive 10-year term for the firearm enhancement (see Pen. Code, § 12022.53, subdivision (b) [“any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years”]), making a total of 12 years.
At trial, both the teller and the manager testified that they identified Hardwick in the photo line-up. The teller positively identified Hardwick in court as well. However, while the teller testified that the robber’s pupils were “very dark,” Hardwick’s counsel claimed that “My client does not have black pupils nor does he have dark brown” eyes. For its part, the jury was allowed to view Hardwick’s eyes for itself.
On appeal, Hardwick contends that the identification testimony was insufficient to sustain the conviction because (a) an alleged discrepancy exists between the teller’s testimony and defendant’s actual pupil color and (b) the supervisor lacked complete certainty at the time she made her identification.
Phrased as a challenge to the sufficiency of the evidence, Hardwick’s argument instead goes to the evidence’s credibility and weight. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259 [“It also is true that uncertainties or discrepancies in witnesses’ testimony raise only evidentiary issues that are for the jury to resolve.”].) While such an argument is, and in this case was, properly raised in the trial court, it is misplaced on appeal. (People v. Midkiff (1968) 262 Cal.App.2d 734, 740 [“Appellant’s extensive factual argument has no place on appeal for this court may not reweigh the evidence or reject the jury’s finding on the credibility of witnesses.”]; People v. Johnson (1960) 187 Cal.App.2d 116, 122 [“The claimed weaknesses of identification testimony are a matter of argument to the trier of fact and cannot properly be directed to this court or effectively urged on appeal . . ., unless the evidence of identification is so weak as to constitute no evidence at all . . . or can be strictured as inherently improbable or incredible as a matter of law.”].)
Instead, our review is much more limited -- “The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296.)
Physical impossibility or inherent improbability is clearly not the case here. The robbery occurred around 4:00 p.m. inside a well-lit grocery store. At points during the incident, each witness came within two to three feet of the robber’s face, which was adequate opportunity enough.
Further, the alleged discrepancy does not render it inherently improbable that the teller adequately viewed the robber. With a gun barrel pointed at her, a bank teller being held up hardly has reason to gaze deeply into the pupils of a bank robber’s eyes. (Indeed, given the potential that the robber would consider anyone who stared too deeply at him to be a threat, she had just the opposite incentive.) Even so, the teller was able to notice the robber’s overall appearance -- including his “beady” and uniquely-shaped eyes.
As to the supervisor’s uncertainty, Hardwick’s argument is even less persuasive. While she was “pretty sure” of her identification at the time of the photographic lineup, at trial the witness testified she was “fairly sure”, having “no question” “that that was the one I had seen.” It simply cannot be said that anything less than absolute certainty automatically renders the identification inherently improbable or impossible so as to undermine the sufficiency of the evidence. (See People v. Midkiff, supra, 262 Cal.App.2d at p. 740 [“While on cross-examination he said that he was not ‘absolutely’ certain of defendant’s identity, he did testify, ‘I would say I am sure.’ This was sufficient to connect defendant to the crimes.”].) It is also worth noting that the supervisor also testified that it is “part of [her] job” to be “good with faces.”
The judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.