Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA064442, Francis J. Hourigan, Judge. Affirmed.
Lawrence R. Young & Associates, Andy Miri and Lawrence R. Young for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
A jury convicted defendant Marcus Lancaster of attempted willful, deliberate, and premeditated murder (Pen. Code §§ 664/187, subd. (a)), and found true the allegations that he intentionally discharged (§ 12022.53, subd. (c)) and personally used (§ 12022.53, subd. (b)) a firearm. The jury found not true the allegation that defendant’s discharge of the firearm caused great bodily injury (§ 12022.53, subd. (d)), and acquitted defendant of assault with a firearm (§ 245, subd. (a)(2)). Before sentencing, the trial court declared a doubt as to defendant’s mental competence under section 1368, adjourned criminal proceedings, and appointed a mental health expert to examine defendant. The issue of competence was submitted based on the expert’s report. The court found defendant competent, and reinstated criminal proceedings. The court sentenced defendant to an indeterminate life term for the attempted murder, plus 20 years for the discharge of a firearm. The court imposed and stayed a 10-year term for the use of a firearm.
All undesignated section references are to the Penal Code.
Defendant appeals from the judgment of conviction, contending: (1) without evidence establishing the chain of custody, the trial court erred in admitting into evidence the firearm allegedly used in the attempted murder; and (2) the eyewitness identification testimony was inherently unbelievable and the remaining evidence does not support the conviction. We affirm.
BACKGROUND
Prosecution Evidence
On March 24, 2005, shortly after 8:00 p.m., Willie Hollins was at the apartment of a family friend (he referred to her as his “auntie”) on West 91st Street in Los Angeles. Hollins saw a Monte Carlo with tinted windows drive slowly past. Perhaps an hour later the Monte Carlo returned and stopped. Hollins was outside the apartment building, standing near two male friends, Derrick and Silk, and an unidentified female. When the car stopped, Derrick and Silk yelled something. Then they and the female dove for cover. The right front passenger of the car, whom Hollins identified as defendant, rolled down the window and fired about six quick shots before the Monte Carlo drove off. Hollins began running after the first or second shots, and was struck once in the left thigh.
Los Angeles County Sheriff’s Deputy John Silverstein responded to the scene around 9:05 p.m. He found two shell casings on the street in front of the apartment building.
About 9:45 p.m., Deputy Santino Saavedra observed a Monte Carlo on West 113th Street, about 2.2 miles from the scene of the shooting. He and his partner stopped the vehicle. The driver was a man named Steven Johnson; the front passenger (the only other occupant) was defendant. Deputy Saavedra found two shell casings in the car: one on the driver’s side floorboard, and the other between the driver’s seat and driver’s door.
Nineteen days later, on April 12, 2005, defendant was the driver of a black Cadillac Escalade that Los Angeles Police Officer Robert Martinez observed speeding as it turned westbound on 108th Street. Officer Martinez and his partner pursued the vehicle, which ultimately failed to negotiate a turn in an alley. The officers illuminated the Escalade with the lights on the side of their police vehicle, and Officer Martinez saw defendant and the passenger get out and flee. Officer Martinez pursued defendant on foot, sometimes losing sight of him as the officer attempted to “leapfrog” defendant’s route as defendant ran between houses. Officer Martinez observed defendant run across 109th Street, but did not seem him emerge onto 108th Street. A K-9 unit eventually apprehended defendant inside a residence at 544 West 108th Street.
That same night, Dessere Brown, who lived at 523 West 109th Street, heard a commotion in the alley behind her home. The next day, April 13, 2005, she found a gun and a pair of gloves in her backyard. They had not been there the day before. Brown did not touch the items and called the police. When Los Angeles Police Officer John Jamison arrived, she pointed out the gun and gloves. Officer Jamison recovered the items. The gun was a fully loaded .9 millimeter Baretta semiautomatic pistol.
In identifying People’s Exhibit 9 as the .9 millimeter Baretta he recovered, Officer Jamison testified that the exhibit had the same serial number as the gun he recovered.
On December 6, 2005, Tracy Peck, a firearms examiner for the Sheriff’s Department, examined the shell casings found at the scene of the shooting and those found in the Monte Carlo by Deputy Saavedra. She determined that all four were ejected from the same firearm.
On February 6, 2006, Peck compared the four recovered shell casings to casings she test fired from the .9 millimeter Baretta recovered by Officer Jamison. She concluded that the four recovered casings were all fired from the Baretta.
The serial number of the firearm test fired by Peck was the same as that on the gun recovered by Officer Jamison. According to Peck, no other gun manufactured by Baretta would have the same serial number. Further, according to Peck, the microscopic imperfections of a firearm which impart markings to expended shell casings are unique to that firearm.
Defense Evidence
Steven Johnson testified that sometime around 6:00 p.m. on March 24, 2005, he loaned his Monte Carlo automobile to defendant. Defendant was to return the car around 9:00 p.m., but failed to do so. Later, sometime between 9:30 and 10:00 p.m., Johnson saw his car at the corner of 113th Street and Figueroa. The sole occupant of the car was a person named “Dog.” Dog went into an apartment building, and Johnson got in the car. Johnson noticed shell casings in the car. Dog ran back to the vehicle and picked up the casings. Johnson said, “What the hell did you do in my car?” Defendant walked up from behind the vehicle and got in with Johnson, and they drove away. They drove around for about half a block before being stopped by the police.
The parties stipulated that after he was stopped in the Monte Carlo on March 24, 2005, a gunshot residue kit was completed on defendant. No particles consistent with gunshot primer residue were detected. From these results, no statement could be made whether defendant did or did not handle or discharge a firearm.
DISCUSSION
I. Admission of the Firearm
Defendant contends that the prosecution failed to establish the chain of custody regarding the firearm (Peo. Exh. 9) recovered by Officer Jamison. Therefore, according to defendant, the trial court erred in admitting the firearm into evidence over defense counsel’s “chain-of-custody” objection. We disagree.
At the outset, we note that there was no doubt that the gun recovered by Jamison was the same gun test fired by Peck: both Jamison and Peck identified the gun by its unique serial number. Further, no objection was made in the trial court, and none is registered on appeal, to Peck’s testimony matching that gun to the shell casings recovered at the scene of the shooting by Deputy Silverstein and to the shell casings seized from the Monte Carlo by Deputy Saavedra. Defendant’s only contention relates to the admission of the firearm itself into evidence. That contention, however, is unavailing.
“In a chain of custody claim, ‘“[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” [Citations.]’ (. . . see also Mendez, Cal. Evidence (1993) § 13.05, p. 237 [‘While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering’].) The trial court’s exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion. [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 134.)
Insofar as the relevant characteristics of the firearm are concerned – its microscopic imperfections that imparted distinctive markings to the shell casings – there is no reasonable possibility that the firearm had been altered between its recovery and test firing. Peck testified that the microscopic imperfections of any firearm that impart markings to shell casings are unique; they belong to that firearm alone. It is entirely speculative to suggest that the gun was somehow altered after its recovery to create the unique imperfections identified by Peck and matched to the recovered shell casings. The trial court did not abuse its discretion in admitting the firearm into evidence.
II. Sufficiency of the Hollins’ Identification Testimony
Defendant contends that Hollins’ identification testimony was not believable, and that the remaining evidence was insufficient to convict. He asserts that “[a]t the time of the assault, Hollins was under attack, was running, was ducking, was not paying attention to the person assaulting him but rather saw only the flash of gunfire and the noise of the gun firing six rounds.” He also refers to evidence that he argues tends to exculpate him.
Of course, “[i]n deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
At trial, Hollins positively identified defendant as the shooter. He testified that when the shooting occurred, a nearby light on the apartment building was flickering, but was bright enough to illuminate the area and the car. Hollins was facing the car when the first shot was fired and he saw defendant’s face through the open passenger window.
Before trial, Hollins had identified defendant at the preliminary hearing on July 18, 2006. Earlier, on April 18, 2005 (25 days after the shooting) he had selected defendant’s photograph in a photographic lineup. At trial, in describing his selection of defendant’s photograph, Hollins testified that he recognized defendant’s braids and face. He also testified that he noted defendant had green eyes in the photograph. In making the photographic identification, Hollis “looked for a person with green eyes in the picture” because the shooter had green eyes. He “didn’t see nobody else [in the photographic lineup] with green eyes.”
According to Detective Ryan Libe, who showed the photographic lineup to Hollins, Hollins appeared to look at each photograph before making his identification. After a minute or so, Hollins selected defendant’s photograph and said, “That’s the shooter.” Hollins expressed no doubts. He told Detective Libe that he had a clear view of the shooter, and the area was well-lit.
Nothing in Hollins’ identification of defendant suggests that it was physically impossible or inherently incredible. Any weaknesses or inconsistencies were for the jury to judge. Further, Hollins’ identification testimony was corroborated by circumstantial evidence. Shortly after the shooting, defendant was detained as the passenger of the Monte Carlo from which Deputy Saavedra obtained two shell casings. Tracy Peck determined that those shell casings were fired by the same gun as the two shell casings recovered at the scene of the shooting. Further, it could reasonably be inferred that when pursued on foot by Officer Martinez on April 12, 2005, defendant discarded the firearm found in the back yard of Dessere Brown. According to Peck, that firearm fired all four of the recovered shell casings. In short, the evidence (including Hollins’ identification testimony) is sufficient to support the conviction.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.