Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F11065.
BUTZ, J.
A jury found defendant David Lawrence Keihl guilty of first degree robbery and first degree burglary. (Pen. Code, §§ 211, 459.) The jury did not reach verdicts on additional counts of false imprisonment by violence and battery causing serious bodily injury and the counts were dismissed. The trial court found defendant had five prior serious felony strike convictions (§§ 667, subds. (b)-(i), 1170.12) and four prior serious felony convictions (§ 667, subd. (a)). The court sentenced defendant to 26 years to life for the robbery and an additional 20 years for the four prior serious felonies. Sentence for the burglary was stayed pursuant to section 654.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends there was insufficient evidence of identity for the jury to find he committed the charged offenses. He also contends, and the People concede, that there is a clerical error on the abstract of judgment requiring correction. We shall order the abstract corrected and affirm the judgment.
FACTUAL BACKGROUND
On August 30, 2006, defendant and Ryan Miller rode their bicycles to Ray Dillon’s apartment. Dillon’s live-in girlfriend, Michelle Matkins, saw the three men change into darker clothes while at the apartment. Dillon was “extremely agitated and almost paranoid” and defendant seemed “a little on edge” and “alert.” Dillon packed a duffle bag with tools and a flashlight, defendant and Miller had backpacks, and the three men left the apartment on foot. Matkins and Dillon were both using methamphetamine, and Matkins knew Dillon traded stolen property for drugs.
At around 11:00 p.m. that night, two men kicked in the front door to 60-year-old Anne Johnson’s home located approximately six miles from Dillon’s apartment. Johnson, who had been in the kitchen working on her laptop computer at the time, got up and walked toward the dining room. One of the men slammed Johnson against the kitchen counter bursting at least one vertebra and struck her in the face fracturing her left eye socket. Johnson screamed and fought back, but was overpowered by the attacker. The man put his hand over her mouth, held her on the ground, and told her, “Don’t worry. We won’t hurt you.” Johnson tried to concentrate on the man’s appearance.
Johnson described the man holding her down as approximately five feet seven or eight inches tall, slender, with silvery eyes and neatly trimmed “salt-and-pepper” hair. He was a white man, possibly Middle Eastern or Palestinian, with olive-toned skin, and appeared to be in his mid-30’s. He was, however, wearing a black or navy “fisherman’s” cap and a bandana covered the lower part of his face, and she only really saw the right side of his face. Her glasses were also knocked off during the attack and, after the attack, she could not see out of her left eye.
While Johnson was held down by her attacker, the other man began disconnecting her laptop computer. Her attacker asked the man taking the computer to get something out of a bag the men had brought into the house with them. Johnson described the man taking her computer as slender and taller than her attacker--approximately five feet 10 inches or taller. He was also white or possibly Hispanic and he moved awkwardly. He was wearing dark clothing and a dark bandana over his face. She thought he may have also been wearing a hat. Johnson indicated the entire event lasted only approximately 90 seconds.
Johnson’s neighbor, Robert Battinich, heard the crash of the door being kicked in and went to Johnson’s house to investigate. Battinich peered through the open front door and saw a man on top of Johnson and another man holding Johnson’s laptop. Battinich yelled at the intruders and they ran off. Battinich told Johnson to go to his house and call 911 while he chased the intruders. The attacker left first, running through the sliding glass door into the backyard, and through an open slat in the fence. The man with the laptop computer then ran out of the house, holding some equipment. Battinich tried to punch the intruder but, although he made contact, the man dodged away and escaped through the slat in the fence.
The day before, Johnson had noticed some screens on the house and garage had been slit and the fence in her backyard had been tampered with so that a board could be removed. Some items had also been moved, but nothing appeared to be missing. She called the police and filled out an online report.
Battinich described the man holding down Johnson as slightly taller than six feet, dressed in black, and wearing a baggy sweatshirt. The man was also wearing a dark “beanie, a robber’s cap.” He could not recall if the man was wearing a bandana covering his face. Battinich described the man taking the laptop as shorter than six feet and either white or Hispanic. That man was also dressed in black, and was wearing a dark bandana on his head which he had tied in front.
Jason Passalacque also rushed over to Johnson’s house, after he heard Battinich yelling, “Get the ‘F’ out of here. What are you doing?” Passalacque saw the back of the man holding Johnson’s laptop computer. The man was wearing a black, hooded sweatshirt, dark pants, and a dark bandana covering his hair but not his face. The man ran out of the sliding glass door. Passalacque chased him through the yard, but the man escaped through a hole in the fence. Passalacque believed he saw the man drop the laptop computer in the backyard before escaping. He later told investigating officers he thought the man was either white or Hispanic and had an olive skin tone.
Dillon called Matkins several times that night. The first time he called he was paranoid and agitated. When he called later, he was upset. Thereafter, defendant and Miller returned to Dillon’s apartment. Matkins got permission from Dillon over the phone to let them in the apartment. Defendant was anxious, upset and mad. He said, “Everything is all fucked up” and “It went all bad.” Miller did not say anything but defendant continued. He also said that Dillon was blowing it and did not know what he was doing-–that this is how you get caught, that Dillon was being sloppy, and that he did not have a plan. He said that he did not know if someone could have been home, that it was all random, it was like he was just driving around trying to find a house, and that you have got to have a plan--without a plan, someone could be home and you could get shot. When Dillon came home later that night, he was also upset.
Police officers found Johnson’s laptop computer on the ground in her backyard. They also recovered a green duffle bag containing a black pouch, tools, tape, a flashlight, and bus schedules. Matkins identified the duffle bag as the one Dillon left the apartment with on August 30, and identified the items in the duffle bag as belonging to either Dillon or herself. Police also recovered a backpack, a black T shirt, a baseball cap and a black bandana head covering from the crime scene. DNA consistent with Dillon’s DNA was found on the cap and bandana head covering. Matkins identified the backpack as Dillon’s and said she had seen one of the men with it when they left the apartment on August 30.
The day after the robbery, Sharon Dyer saw defendant at a rally. Defendant told Dyer that he and Dillon had done something stupid and almost committed a home invasion the night before, but it had failed. Defendant said they had walked around the block a couple of times, knocked on a door, a lady answered, she screamed, and defendant grabbed Dillon and they ran away. She asked defendant if they were covered up and defendant said “yes.”
Defendant has a tattoo on his left temple. Dyer testified that defendant had this tattoo when she first met him in April or May 2006. The jury was shown defendant’s tattoo during trial. Detective Matthew Garcia met with defendant twice during his investigation. He estimated defendant’s height to be six feet or six feet one inch, and his weight to be 200 pounds. He also estimated defendant to be in his late 30’s or early 40’s. The police department form indicates defendant is six feet one inch, 200 pounds, and 46 years old. Garcia estimated Dillon is about five feet nine inches and 160 pounds.
Johnson was shown a photograph of Miller at trial. She testified she did not recognize him and he was not one of the men who came into her home.
Johnson did not identify defendant in a September 2006 photo six-pack or at the January 2007 preliminary hearing. At trial, she testified that she did not believe defendant was her attacker because she did not see the tattoo on his face during the attack. She acknowledged, however, that the tattoo is on the left side of his face and she saw primarily the right side of her attacker’s face. She also did not believe defendant was her attacker because his eyes appeared to be a darker color. Johnson concluded that she could “not be sure” if defendant was one of the two men in her house.
Battinich identified defendant in a September 2006 photo six-pack. He noted that defendant had the “most familiar skin tone,” and “the eyes keep drawing me back to [him].” He explained that, although he felt he got a “decent side view” of one of the men, he was not thinking clearly or trying to remember, as he was in a state of panic at the time. Battinich did not identify defendant as the attacker at trial. He testified he had not seen either perpetrator well enough to “really identify” the men “with a hundred percent certainty.”
Passalacque said he only saw the man with the computer and was confident he would not be able to identify him. He was shown a photo six-pack in September 2006 and did not identify defendant.
The jury saw pictures of defendant, Miller and Dillon, as they appeared near the time of the robbery. At the jury’s request, defendant also stood and faced the jury.
DISCUSSION
I. Substantial Evidence
Defendant contends there was insufficient evidence of identity to support the jury’s finding that he was one of the perpetrators of the crimes. We disagree.
In considering a sufficiency of the evidence claim, we view the evidence in the light most favorable to the judgment, presume in support of the judgment every fact that may be reasonably deduced from the evidence, and “determine, in light of the whole record whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Davis (1995) 10 Cal.4th 463, 510; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.).
“[T]o entitle a reviewing court to set aside a jury’s finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.” (People v. Lindsay (1964) 227 Cal.App.2d 482, 493.) Moreover, “‘“[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.”’” (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Defendant cites to the inability of the witnesses to identify him as one of the perpetrators with certainty, the credibility of Matkins and Dyer regarding defendant’s post-robbery incriminating statements, the failure of those incriminating statements to accurately and specifically describe the robbery, and inconsistencies between the descriptions the witnesses gave of the suspects to the police and defendant’s actual appearance. Based on these claimed weaknesses in the prosecution’s evidence, defendant argues the evidence is insufficient to prove his identity as one of the robbers.
Initially, we comment that, as a matter of common knowledge, estimates of age, height and weight are subjective. Moreover, it is not necessary that the identification of defendant as the perpetrator of the crime be made positively or in a manner free from inconsistencies. (People v. Primo (1953) 121 Cal.App.2d 466, 468.) “Discrepancies in the testimony of two or more witnesses in describing the apparel of the accused or changes of, or conflicts in their testimony [are questions] for the jury.” (People v. Ash (1948) 88 Cal.App.2d 819, 825.).
Here, even the detective who met with defendant twice, estimated defendant’s age to be significantly younger than his actual age. Considering that Johnson had been immediately assaulted, causing the loss of her glasses and the injury to one of her eyes resulting in temporary vision loss, discrepancies in her description of the intruders compared to their actual appearances, as well as her inability to positively identify defendant, does not render the evidence insufficient. Likewise, Battinich and Passalacque saw the intruders only briefly and, as Battinich explained, while in a state of panic. Additionally, Johnson’s attacker (and perhaps the other intruder as well) was wearing a head covering and a bandana over half his face, making later identification particularly difficult. Nonetheless, the witnesses still gave descriptions generally describing defendant.
Although the photographs of Dillon, Miller and defendant that were shown to the jury are not included in the record on appeal, the prosecutor repeatedly argued to the jury, without objection, that defendant had salt-and-pepper hair.
Further evidence that defendant was one of the intruders was also presented to the jury. As defendant concedes on appeal, the evidence established that Dillon was one of the two intruders. Defendant changed into dark clothing before leaving the apartment with Dillon and Miller that night. When he returned with Miller, he was upset and angry. He made numerous statements that everything had gone badly, that Dillon did not know what he was doing, that Dillon was trying to find a house and had picked one at random, and that this was how one got caught or got shot. These statements were extremely inculpatory in establishing defendant had participated in the robbery with Dillon. Miller, however, did not say anything.
Additionally, defendant told Dyer the following day that he and Dillon had “almost” committed a home invasion the night before but it had “failed.” To a criminal, the robbery could be considered as failing since by dropping the computer on the way out, they did not succeed at stealing anything. The jury could reasonably conclude that defendant claimed they ran off instead of admitting he beat the 60-year-old female victim in order to downplay the severity of the robbery in Dyer’s eyes.
Finally, as to defendant’s attack on appeal of Matkins’s and Dyer’s credibility as witnesses, “‘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.’” (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on another point in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
The fact the evidence allowed for an argument that defendant may not have been the individual with Dillon who attacked Johnson that night does not warrant reversal of the judgment. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) Defendant’s convictions are supported by substantial evidence.
II. Correction to Abstract of Judgment
Defendant contends, and the People properly concede, that the abstract of judgment does not accurately reflect defendant’s convictions.
Defendant was convicted of first degree robbery in violation of section 211 (count 1) and first degree burglary in violation of section 459 (count 2). The abstract of judgment erroneously reflects that defendant was convicted of two counts of robbery. Thus, the abstract of judgment must be corrected to properly reflect defendant’s actual convictions. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
III. No Section 4019 Credits
The recent amendments to section 4019 do not entitle defendant to additional time credits, as he was committed in this case for “serious” felonies. (§ 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Both robbery and first degree burglary are serious felonies and his convictions for these offenses preclude additional conduct credits. (§ 1192.7, subd. (c)(18) & (19).) Defendant’s five prior serious felony strike convictions and four prior serious felony convictions also preclude the award of additional conduct credits. (§ 4019, subds. (b)(2) & (c)(2).)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting that defendant was convicted in count 1 of first degree robbery (§ 211) and in count 2 of first degree burglary (§ 459), and forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J. HULL, J.