Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FWV038022, Mary E. Fuller, Judge.
Phillip I. Bronson, 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, Sharon Rhodes, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Following a jury trial, defendant was convicted of two counts of unlawful firearm activity (Pen. Code, § 12021, subd. (c)(1)) (counts 1 & 4); two counts of shooting at an occupied motor vehicle (§ 246) (counts 2 & 6); and assault with a firearm (§ 245, subd. (a)(2)) (count 5). The jury further found that in the commission of count 5, defendant personally used a firearm within the meaning of sections 1203.06, subdivision (a) and 12022.5, subdivision (a). The jury acquitted defendant of two counts of discharge of a firearm with gross negligence (§ 246.3) (counts 3 & 7). Defendant was sentenced to a total term of 15 years 8 months in state prison as follows: the upper term of four years on count 5, plus the upper term of 10 years for the gun-use enhancement, and a consecutive term of one year eight months on count 2. The aggravated terms on counts 1, 4, and 6 were ordered stayed pursuant to section 654. On appeal, defendant contends (1) there was insufficient evidence to support his convictions for unlawful firearm activity, shooting at an occupied motor vehicle, and assault with a firearm; and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___ [127 S .Ct. 856, 868, 166 L.Ed.2d 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper terms. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
During the first week of May 2006, Elizabeth Cortes drove defendant, her then-boyfriend and father of her children, to a music studio in San Bernardino. While at the studio, they got into an argument over a girl, which lasted on and off for about a half hour. Thereafter, Cortes decided to leave and asked defendant to unlock the gate to the parking lot where her car was located.
As Cortes was driving toward the gate, defendant shot at the back of her car, hitting her trunk. He then walked to the front of the car and fired again, from about two feet away, hitting her front headlight. Cortes stated that the gun defendant was holding was “pretty small,” so she could not actually see it. At some point, defendant unlocked the gate and opened it so that Cortes could leave.
On cross-examination, Cortes testified that she did not see anyone shoot at her car but “felt” a bullet hit the car. She also admitted that she did not hear gunshots or see muzzle flashes. However, later she clarified that she saw defendant shoot at her car in the first incident but not in the second incident. She also stated that she had lied when she said she had seen him shoot at her car. She explained that what she really saw was defendant’s hand pointed towards the front headlight, and then she heard the sound of an impact on the headlight.
Cortes immediately picked up her cellular telephone and called the police in order to scare defendant. However, she hung up as her call was being transferred. She explained that she really “wasn’t too mad,” because she did not feel defendant was actually trying to hurt her. She did not speak to the police about this incident until approximately two weeks later.
The following day, Cortes found a bullet in the trunk of her car. She also noted damage to the car’s headlight and a hole in her car’s license plate, damage that was caused by defendant when he shot at the car.
Sometime after the incident, Cortes told defendant that she was angry about his shooting at her car. He said he was sorry. Cortes was still willing to spend time with defendant because she knew he was not trying to hurt her.
About two weeks later, during the evening of May 16, 2006, Cortes was driving defendant and his two friends, Jerry Wade and Daniel Fernandez, around San Bernardino. Defendant was in the front passenger seat and Wade and Fernandez were in the back. Once again, Cortes and defendant, who were still dating, began arguing about another girl. At some point, Cortes stopped the car and told defendant and his friends to get out. After defendant got out of the car and closed the door, Cortes heard about seven shots being fired at her car door, and her front passenger side tire was flattened. She did not see the gun or the actual shooting because she had covered her face. When she uncovered her face, she saw defendant running away through the park. Defendant’s friends came back to the car to see if Cortes was all right. They were angry with defendant, and one of them said he wanted to “kick [defendant’s] butt.”
Cortes then called the police to report the incident. Ontario Police Officer Fred Ruiz was dispatched to the scene and contacted Cortes. She explained what had happened when defendant got out of her car, telling Officer Ruiz that defendant had shot at her car about seven times with a large gun and then had run away. Officer Ruiz noticed bullet holes in the right front passenger door, a flat tire, and liquid on the street. Cortes gave Officer Ruiz defendant’s name and his driver’s license number. While Officer Ruiz was talking to Cortes, six other officers arrived to assist him.
Officers at the scene contacted Wade and Fernandez, who agreed to go back to the police station. After speaking with Wade and Fernandez, officers determined that they were not suspects in the shooting. Both men were given gunshot residue tests, which revealed no gunshot residue particles. However, a criminalist found antimony and lead particles on both Fernandez and Wade, and he could not rule out the possibility that either man had fired a firearm.
Cortes was also interviewed at the police station a couple hours after the incident. She told Officer Ruiz about the shooting that had occurred two weeks earlier at the music studio. She explained that, following an argument with defendant at the music studio, she had decided to leave; as she was leaving, defendant had shot twice at her car. Then he had stepped in front of her car and shot one additional time. Cortes also told Officer Ruiz that she had actually seen defendant with a small gray gun. She handed Officer Ruiz a photograph and indicated that the gun shown in the photograph was the gun defendant had used. Officer Ruiz conceded that the gun in the photograph was rather small, but he did not think it was a toy and thought it could either be a .22- or .380-caliber gun. Officer Ruiz also believed it was small like a Derringer, which fires two shots. Cortes told the officer that she now wanted defendant to go to jail for the second shooting, but not for the first.
At trial, Cortes conceded that, when she was talking to Officer Ruiz, she had lied about some details.
Cortes’s car was later examined by a forensic specialist. The specialist found nine bullet holes throughout Cortes’s car: four in the front passenger side door, one in the front passenger side tire, one in the front passenger side wheel well, one in the trunk, one in the rear license plate, and one in the front passenger side headlight. There was an exit hole inside the front car door, to the left of the speaker, and a bullet fragment located on the front passenger floorboard on the car mat. There was also a projectile, consistent with a bullet, in the trunk and a bullet located in the front console of the vehicle.
Sometime after the second shooting, defendant left Cortes a telephone message asking if she was okay, saying he was sorry for running, and telling her to say that he was never there because he felt he “couldn’t prove he didn’t do it.”
II
DISCUSSION
A. Insufficiency of the Evidence
Defendant contends there was insufficient evidence to support his convictions for unlawful firearm activity, shooting at an occupied motor vehicle, and assault with a firearm because the main witness, Cortes, was not credible. Specifically, she gave inconsistent statements and testimony, her description of the shootings was implausible, she admitted making false accusations against defendant, and it is implausible that she would have maintained an intimate relationship with defendant after the first shooting if it really had occurred.
Our review of any claim of insufficiency of the evidence is limited. In reviewing a claim that the evidence is insufficient to support a conviction, “[w]e review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid valid, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859, citing People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his convictions. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In determining whether substantial evidence exists, “we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71; see also People v. Jones (1990) 51 Cal.3d 294, 314.) “Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Bean (1988) 46 Cal.3d 919, 932-933.) The standard of review applies even “when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
In the present matter, defendant’s sole complaint regarding the sufficiency of the evidence is an attack on Cortes’s credibility. However, as noted above, the credibility of Cortes’s testimony was a matter for the jury to resolve. In addition, the “uncorroborated testimony of a single witness is sufficient” to sustain a jury finding “unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296.) There was nothing physically impossible or inherently improbable about Cortes’s testimony that defendant shot at her car with a gun; consequently, that testimony constitutes sufficient substantial evidence to support the jury’s finding. Moreover, other evidence introduced at trial — specifically the nine bullet holes in Cortes’s car — corroborated Cortes’s version of events.
While Cortes’s testimony on cross-examination varied in some respects, such as whether she actually saw defendant fire the guns or saw the guns themselves, the jury heard evidence that provided her with a possible motive to minimize defendant’s behavior. The record is clear that defendant and Cortes had a volatile but intimate relationship. Cortes had known defendant for five years; they had been dating off and on for almost three years, and they had two children together.
Defendant claims Cortes’s testimony was implausible, as she would not have continued an intimate relationship with defendant if he had truly shot at her car in the first shooting. We disagree. There is nothing implausible about Cortes’s testimony due to this relationship. If that were the case, domestic violence cases would cease to exist. Cortes explained that she did not believe defendant was actually trying to hurt her when he shot at her car the first time, and he had apologized for his actions. The jury heard evidence regarding the details and dynamics of defendant and Cortes’s relationship and nevertheless found her credible, despite her decision to continue interacting with defendant following the first shooting.
In addition, contrary to defendant’s contention, Cortes did not testify on cross-examination that she was unaware defendant had fired at her car until she found a bullet in her trunk the next day. On cross-examination, Cortes testified she did not see anyone shoot at her car, but she “felt” a bullet hit the car. She also admitted that she did not hear gunshots nor see muzzle flashes. However, later she clarified that she saw defendant shoot at her car in the first incident, but not in the second incident. She explained that she did not know for certain it was a bullet until she saw defendant shoot at the front of her car and then found a bullet in the trunk later. Viewing this testimony in the light most favorable to the judgment (People v. Snow (2003) 30 Cal.4th 43, 66), however, it is clear that Cortes was not recanting her direct examination testimony that defendant had some type of gun and that she was aware he had shot at her car on two different occasions. Though the evidence does not reveal what type of gun defendant used during the first and second shooting, and Cortes admitted on cross-examination that she did not see muzzle flashes or defendant actually shoot at her car, a reasonable trier of fact could conclude that defendant had a gun and that Cortes was either not looking directly at the gun or blinked the moment defendant fired. (See People v. Rayford (1994) 9 Cal.4th 1, 23 [appellate court must “‘“presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence”’”].) Consequently, Cortes’s cross-examination testimony did not significantly undermine her direct examination testimony that defendant shot at her car while she was in it with a gun, and the jury was entitled to rely on Cortes’s testimony as sufficient proof of those facts.
Defendant’s reliance on People v. Blakeslee (1969) 2 Cal.App.3d 831, 838-840, where the court found evidence of opportunity, motive, and a false alibi were insufficient to support the conviction under the circumstances of the case, is unavailing. Our case is notably different. Defendant also cites cases in which the evidence, including all reasonable inferences, was enough to raise suspicion but not to prove guilt. But in these cases there was no solid evidence that the defendants had committed any crimes. (See, e.g., In re Eugene M. (1976) 55 Cal.App.3d 650, 658 [involving an extrajudicial identification by an accomplice obtained by threats of incarceration and prosecution and which was later repudiated at trial by the accomplice; the minor’s conviction was reversed not because it was based on an inconsistent statement, but because the circumstances surrounding the giving of statement rendered it unreliable]; People v. Reyes (1974) 12 Cal.3d 486, 499 [the court concluded the defendant’s fingerprints found on the window of a car were insufficient to link the defendant to the crime because there was evidence he had been a passenger in the car on the night before the murder, which divorced the fingerprints from any taint of criminality]; People v. Carvalho (1952) 112 Cal.App.2d 482, 489 [testimony inherently improbable or “unbelievable per se”].) Here, there was overwhelming evidence defendant shot at Cortes’s car on two different occasions, each following an argument with Cortes. Cortes’s testimony generated reasonable inferences, not rebutted by any credible evidence, that defendant had committed the crimes in question.
To be disregarded as “inherently improbable,” the testimony must be “fantastic” and “do violence to reason, challenge credulity, and in the light of human experience, emasculate every known propensity and passion of people under the conditions testified to by the prosecutrix.” (People v. Carvalho, supra, 112 Cal.App.2d at p. 489.) The testimony must “involve a claim that something has been done which it would not seem possible could be done under the circumstances described.” (Ibid.) “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.]” (People v. Huston (1943) 21 Cal.2d 690, 693.) “[T]estimony which merely discloses unusual circumstances does not come within that category. [Citation.]” (Ibid.)
Dismissing testimony as “inherently improbable” is appropriate only in the most extreme circumstances. Those are not present here. While Cortes’s trial testimony and her statements during an interview before trial were not perfectly consistent in all the details, the inconsistencies, taken as a whole, did not render her testimony “inherently improbable.” Sufficient evidence supported defendant’s convictions for unlawful firearm activity, shooting at an occupied motor vehicle, and assault with a firearm.
B. Upper Term Sentences
At sentencing, the trial court imposed aggravated terms based on the following factors: (1) the crimes involved the threat of great bodily harm in that defendant shot at the victim on more than one occasion and fired multiple shots on each occasion; (2) defendant engaged in violent conduct which indicated a serious danger to society; and (3) defendant’s prior convictions as an adult were numerous and of increasing seriousness.
Relying on Cunningham, Blakely, and Apprendi, defendant contends the upper term sentence violates his Sixth Amendment rights because the sentence was based on aggravating factors not reflected in the jury verdict or admitted by defendant.
In Cunningham, the United States Supreme Court overruled People v. Black (2005) 35 Cal.4th 1238, 1244 and held that the middle term in California’s determinate sentencing law was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, supra, 127 S.Ct. at p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi: “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488, 490.) The court explained that California’s determinate sentencing law violates Apprendi’s bright-line rule: “Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, at p. 868.)
In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)
Recently, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II). There, the court held that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that, plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black II, at pp. 819-820.) The court’s reliance here upon the factor that defendant’s prior convictions were numerous and increasingly serious falls squarely within such an exception. (See ibid.) It follows that the trial court did not err by imposing the upper term.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.
Cortes further admitted that she did not like defendant’s involvement in the music business because it provided her boyfriend with an opportunity to meet a lot of girls. She also acknowledged that she had made false accusations against defendant to the police in the past and that she wanted defendant to go to jail.