Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04CF3793, M. Marc Kelly, Judge. Affirmed as modified.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Keith Lollis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Aronson, J.
* * *
A jury convicted Ricardo Lopez of carjacking (Pen. Code, § 215, subd. (a); all further statutory references are to this code unless noted otherwise) and second degree robbery (§§ 211, 212.5 subd. (c)), and found true the enhancement for personal use of a firearm during the commission of these felonies (§ 12022.53, subd. (b)). Defendant contends no substantial evidence supports his convictions or the enhancement. He also argues, and the Attorney General concedes, he should not be required to register as a gang member under section 186.30 because there was no evidence his offenses were gang-related. Finally, he contends imposition of the upper term on his carjacking conviction violated his Sixth Amendment right to a jury trial. We agree the gang registration requirement must be stricken, but in all other respects we affirm the judgment.
I
Factual and Procedural Background
On the evening of December 21, 2004, Elvis Tovar parked a borrowed, green 1994 Chevy Camaro inside his apartment complex’s gated parking structure. Exiting the vehicle, Tovar noticed two men about 10 feet away, one wearing a black beanie. This man drew a gun and pointed it at Tovar, ordering him to approach. Tovar complied, stopping within two feet of the gunman, who demanded Tovar’s necklace, wallet, and bracelet. Tovar surrendered his necklace and wallet, but had difficulty removing his bracelet. When the gunman demanded the keys to the Camaro, Tovar complied. Entering the vehicle, the gunman informed Tovar, “‘I know where you live.’” He threatened to kill Tovar if he reported the crime, and then sped away with his compatriot.
Two days later, police officers visited defendant’s home on an unrelated matter. They discovered Tovar’s car keys and two parking lot security cards from Tovar’s wallet in defendant’s possession. They also found the green Camaro stolen from Tovar parked at the residence. Inside the vehicle, officers recovered a black beanie.
Tovar identified defendant as the gunman at the preliminary hearing and again at trial. A forensic expert testified DNA samples from three separate individuals were recovered from hair samples taken from the black beanie, but none matched defendant. Defendant testified that two days after Tovar was carjacked he found the Camaro parked in front of his girlfriend’s house with the engine running and the keys in the ignition. He decided to take it for a joyride, and drove it to his mother’s house. He denied involvement in the carjacking.
The jury convicted defendant of carjacking and robbery, and the trial court sentenced defendant to the upper term of nine years for carjacking, plus a consecutive 10-year term for the personal gun use enhancement. The court stayed sentencing on the robbery conviction pursuant to section 654. Defendant earlier had pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), on which the trial court imposed a two-year concurrent term. The court also required defendant to register as a gang offender and a controlled substance offender. Defendant now appeals.
II
Discussion
A. Substantial Evidence Supports the Convictions and Gun-Use Enhancement
Defendant challenges the sufficiency of the evidence supporting the jury’s conclusion he was the gunman in the carjacking and robbery, and he similarly contests the enhancement for personal use of a firearm. “‘In reviewing a criminal conviction challenged as lacking evidentiary support, “‘the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” [Citation.] . . .’” (People v. Elliott (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139 (Crittenden).)
Thus, we presume in support of the judgment the existence of every fact the jury could have deduced from the evidence. (Crittenden, supra, 9 Cal.4th at p. 139.) A reviewing court may sustain a conviction based on the uncorroborated testimony of a single witness. (People v. Gammage (1992) 2 Cal.4th 693, 700.) It is the jury’s exclusive province to assess the credibility of the witnesses, resolve conflicts in the testimony, and weigh the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The fact the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, a defendant “bears an enormous burden” when challenging the sufficiency of the evidence. (Sanchez, at p. 330.)
An in-court eyewitness identification alone is sufficient to sustain a conviction. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; People v. Hughes (1969) 271 Cal.App.2d 288, 291.) Where, as here, the circumstances surrounding the identification and its weight have been exhaustively investigated at trial, the trier of fact’s evaluation of that evidence — reflected in the verdict — is binding on the reviewing court. (In re Gustavo M., supra, at p. 1497.) For “‘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. Prado (1982) 130 Cal.App.3d 669, 674 (Prado), abrogated on other grounds by People v. Howard (1992) 9 Cal.4th 1132, 1175, fn. 17.) Thus, “‘it is not essential that a witness be free from doubt as to one’s identity’” to sustain a conviction. (Ibid.) Accordingly, a conviction may be sustained where an eyewitness fails to select the defendant’s photograph from a photographic display; or an eyewitness provides a description of the assailants inconsistent with that of the defendant. (Id. at p. 673.) Such failures and inconsistencies impact only the weight of the evidence, not its sufficiency. (Id. at p. 674.)
Defendant premises his challenge on grounds “Tovar did not get a good look at the gunman’s face, and failed to positively identify [defendant] in the photographic line-up.” Tovar acknowledged he was unable to get a “definitive look at the suspect’s face” (italics added) during the carjacking because the gunman wore a beanie low over his brow and kept his head down. But Tovar picked defendant as one of two men in the photographic lineup who resembled the gunman, and was confident he could make a positive identification if he saw his assailant again in person. He positively identified defendant both at the preliminary hearing and again at trial. Defendant argues these in-court settings were inherently suggestive, but the jury concluded Tovar’s identification withstood this challenge.
Defendant highlights what he perceives are fatal discrepancies in Tovar’s description of the gunman. For instance, Tovar initially believed the gunman was about three inches taller than himself, whereas defendant stood the same five feet six inches tall as Tovar. And while Tovar picked the two men in the photographic lineup because they had the same “build” as the gunman, according to defendant the two men have dissimilar body types. Consequently, defendant argues Tovar’s assessment they were both built like the gunman must be deemed logically impossible. Defendant also notes forensic examination revealed none of his hair in the beanie, but rather strands from three other unidentified individuals. He reasons one of these persons was therefore likely the gunman.
The standard of review requires that we decline defendant’s invitation to reweigh the evidence. The jury could reasonably determine the height discrepancy of three inches was of no consequence where Tovar’s fear may have enlarged his assailant in his memory without rendering him unrecognizable. Similarly, the jury could determine that different estimates of body type or build based on photographs meant little where the victim expressed confidence he could identify his attacker in person, and did so consistently. Defendant concedes a person may wear a beanie without leaving any hair in it and we note, alternatively, the jury could conclude the gunman discarded the beanie he wore. In sum, the issue of identity was for the jury to determine and Tovar’s identification was not so weak as to constitute “‘practically no evidence at all.’” (Prado, supra, 130 Cal.App.3d at p. 674.) To the contrary, he first saw defendant a mere 10 feet away, drew closer at defendant’s command, and stood within two feet long enough to be divested of his necklace, wallet, and keys, to attempt and fail to remove his bracelet, and to have a verbal exchange with defendant. Given the victim’s ample opportunity to view defendant at close quarters, defendant’s substantial evidence challenge fails.
B. No Substantial Evidence Established the Offenses Were Gang-Related
The Attorney General concedes no substantial evidence supports the trial court’s imposition of a gang registration requirement. (§ 186.30, subd. (b)(3).) We agree nothing in the record suggested defendant’s offenses were gang-related, as required to impose the registration requirement. (People v. Martinez (2004) 116 Cal.App.4th 753, 762-763.) Consequently, the registration requirement must be stricken. (Ibid.)
C. Trial Court’s Imposition of Upper Term Did Not Violate the Sixth Amendment
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny, defendant contends the trial court violated his Sixth Amendment right to a jury trial by imposing the upper term for his carjacking conviction. In Apprendi, the United States Supreme Court held that, “[o]ther than the fact of 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.” (Id. at p. 490.) The “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury’s verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court held “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) Overruling Black I, the United States Supreme Court concluded that because the middle term was the relevant statutory maximum under California’s determinate sentencing law, authorizing “the judge, not the jury, to find the facts permitting an upper term sentence . . . cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 871] (Cunningham).) The high court explained “‘the relevant “statutory maximum”’ . . . ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’” (Id. at p. 860.)
On remand of Black I after Cunningham, our Supreme Court has recently determined that because a single aggravating factor established by constitutional means suffices under state law to expose the defendant to the upper term, no constitutional violation arises from a trial court’s additional fact finding. (People v. Black (2007) 41 Cal.4th 799, 815-816 (Black II).)
The Supreme Court acknowledged the trial court’s “factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional.” (Black II, supra, 41 Cal.4that p. 815.) Stated differently, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Where no aggravating factor relied upon by the trial court is established by one of these recognized means, imposition of an upper term sentence violates the Sixth Amendment. (See People v. Sandoval (2007) 161 P.3d 1146, 1157 [Sixth Amendment prohibits trial court from determining whether crime involved “‘high degree of cruelty, viciousness, or callousness’ . . . on defendant’s part”].)
Here, the trial court cited multiple factors for imposing the upper term, including: (1) defendant’s “extensive” criminal history; (2) the increasing seriousness of his crimes; (3) his poor performance on probation and parole; (4) his status as an active parolee; and (5) the “vicious and callous” manner in which defendant threatened the victim by stating “‘I know where you live.’”
Defendant’s priors consisted of 10 sustained juvenile petitions, which qualify as aggravating factors under California law. (Cal. Rules of Court, rule 4.421(b)(2).) Defendant does not contend reliance on juvenile adjudications violates the Sixth Amendment, a claim recently rejected in People v. Tu (2007) __ Cal.App.4th __ [2007 WL 2411707]. (But see People v. Nguyen (2007) 152 Cal.App.4th 1205 [petition for review pending, petition filed July 31, 2007].) As the issue is not raised, we express no opinion on the matter.
Although the fifth factor, as a circumstance of the crime, is not properly subject to judicial factfinding as the sole basis for imposition of the upper term (see Sandoval, supra, 161 P.3d at p. 1154), defendant’s recidivism alone “render[ed] him eligible for the upper term” (Black II, supra, 41 Cal.4th at p. 820). Additionally, in Black II, our Supreme Court concluded the exception to jury factfinding maintained in Apprendi through Cunningham for recidivism extends to the recidivism-related question of whether the prior convictions are “numerous or of increasing seriousness” (see Cal. Rules of Court, rule 4.421(b)(2)). (Black II, supra, at pp. 819-820.) The issue of whether a judge may evaluate a defendant’s performance on probation and parole is currently pending before our high court. (People v. Towne (Feb. 7, 2007, S125677).) In any event, defendant’s recidivism and the increasing seriousness of his offenses were established consistent with controlling precedent from the federal high court and our Supreme Court (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore defendant “was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by imposition of the upper term sentence . . . .” (Black II, supra, at p. 820.)
III
Disposition
The gang offender registration requirement is stricken from the judgment, and the trial court is directed to amend its records accordingly. As so modified, the judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J. FYBEL, J.