Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F01474
RAYE, J.A jury found defendant Cliff Bo Makihele guilty of two counts of second degree robbery, both charged as serious felonies within the meaning of Penal Code section 1192.7, subdivision (c), and two counts of kidnapping during the commission of a carjacking. The jury also found true as to all four counts the special allegation that defendant personally used a firearm in the commission of the offenses. The trial court denied defendant’s motion for a new trial and sentenced him to 34 years to life in prison.
All further statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred by applying the wrong standard when it denied his motion for a new trial. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Armed with a shotgun, defendant and a male accomplice approached a Honda Civic; forced the two occupants, Jeanette Winney and Sam Ferra, into the back seat; and drove off. They pulled around the corner and picked up a third male accomplice, who was also armed.
With a shotgun pointed at Winney’s head, the three men drove around for approximately 20 minutes. They stopped briefly, demanding the victims’ wallets, cell phones, and identification. The victims got out of the car and stood next to the vehicle while defendant and one of the other men opened the trunk to find Winney’s belongings. Winney was able to see defendant’s face as he stood by the trunk.
Before defendant and the other two men drove off, they demanded that one of the victims get back in the car. Ferra got in and they drove off, leaving Winney and telling her they would shoot Ferra in the head if she called the police. As soon as the car was out of sight, Winney ran to the nearest house and a person there called for help.
Defendant and his accomplices drove Ferra to a baseball field in a nearby town, where they discussed whether to shoot him or tie him up and leave him. The three men ordered Ferra out of the car and walked him at gunpoint to one of the dugouts. There, they blindfolded Ferra, tied his hands and feet, and told him, “We’re the nicest crooks you’re ever gonna meet for not killing you.” The three men walked away, but one returned a minute or two later and asked Ferra for the access code to his ATM card. After Ferra gave him the information, he heard the three men hop the fence and drive off in Ferra’s car. Ferra was finally able to free himself and run for help.
Sometime between 3:00 a.m. and 5:00 a.m. on December 14, 2004, defendant knocked on the door of Ernest Reyes looking for “Little Pineapple” (a nickname used by Reyes’s brother-in-law, Joseph Sanchez). Reyes did not know defendant’s name, but he recognized his face from having seen him on two prior occasions, once when defendant asked Reyes if he could buy some marijuana, and once when defendant was riding in a car with an individual named Mickey Lopa. Defendant told Reyes about the stolen car, a black Honda, and asked if he knew anybody who wanted it. Reyes checked out the car while defendant and the two other men rummaged through the trunk. He noticed a purse containing makeup lying in the car and asked if he could have it for his girlfriend; they gave it to him.
The next morning, Ferra’s car was found “trashed” in an alley adjacent to Reyes’s home. Crime scene investigators discovered Reyes’s fingerprints on the stolen car.
Reyes was questioned by police and eventually arrested for receiving the stolen purse.
Prior to trial, Winney and Ferra each participated in various lineups to try to identify the carjackers. Winney was shown a number of live lineups and photo lineups, not all of which included a picture of defendant. She identified defendant in a February 4, 2005, photo lineup as someone who “look[ed] familiar” and reminded her of the suspect “who asked her if she lived in the area where they were first found.” In a live lineup conducted on April 14, 2005, Winney said defendant’s face looked “similar to” the suspect who asked where she and Ferra wanted to be dropped off, and positively identified defendant after hearing his voice. She also identified defendant at trial.
Ferra was also shown a number of photo lineups and one live lineup, not all of which included defendant. He identified defendant in a February 8, 2005, photo lineup as resembling one of the suspects involved in the crime, but could not positively identify defendant in a photo lineup, a live lineup, or at trial.
Reyes was shown two photographic lineups that included defendant’s picture. He positively identified defendant in the February 3, 2005, lineup. Reyes also identified defendant at trial.
Defendant was charged with second degree robbery (§ 211 -- counts one and two) and kidnapping during the commission of a carjacking (§ 209.5, subd. (a) -- counts three and four). As to each count, the information alleged that defendant personally used a firearm. (§ 12022.53, subd. (b).)
A jury found defendant guilty of all counts, finding the firearm enhancements true as to each count.
Defendant moved for a new trial pursuant to section 1181, paragraph No. 6, contending the verdict was contrary to law and the weight of the evidence. The court denied the motion and sentenced defendant to an indeterminate term of 14 years to life with the possibility of parole on counts three and four, plus 10 years for each firearm enhancement, and the middle term of three years each on counts one and two (stayed pursuant to section 654), plus 10 years for each firearm enhancement (also stayed), for an aggregate prison term of 34 years to life.
We note a discrepancy in the abstract of judgment, which incorrectly reflects a conviction for first degree robbery as to count one.
Defendant filed a timely notice of appeal.
DISCUSSION
When ruling on a motion for a new trial, the trial court must consider the proper weight to be accorded the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. (People v. Robarge (1953) 41 Cal.2d 628, 633.) We review the trial court’s denial of a motion for new trial under the substantial evidence standard. (People v. Serrato (1973) 9 Cal.3d 753, 761.)
In his motion for a new trial, defendant argued the witness identifications were insufficient to support a conviction. In particular, defendant argued that Ferra never identified him, Winney’s ultimate identification of him at trial was suspect, and Reyes’ identification was the self-serving lie of a “career criminal.” At the hearing on the motion, defense counsel reiterated that there was “no direct evidence placing [defendant] at the scene of the crime.”
The trial court rejected defendant’s arguments, stating as follows: “I heard about the various photo lineups and how certain people had some difficulty in the photo lineups, and I heard about the live lineups, and I also heard testimony from, is it Ernesto Reyes? [¶] . . . [¶] I heard the testimony, the live testimony of the victims in the Court. [¶] And other than a potential ID issue, which the jury resolved against you, in other words, they concluded that you were indeed the person, or one of those persons that jumped in the car, held these people at gunpoint, let the young lady go after a while, and then took the young man, Mr. Ferra, all around the various parts of town, all the way out to Elk Grove Park where he was bound and gagged and left in the dugout of a baseball field, and at least, according to him, at least on one occasion, thought he would be killed after he was left there. [¶] The jury having heard and resolved the identification issues against you, this Court cannot conclude that there was not enough evidence to support the jury’s verdict. [¶] Even though some of it was circumstantial, your appearance before Ernest Reyes shortly after the crime, with the stolen car, attempting to sell the car, and/or some of the parts of the car, was very strong and incriminating evidence, coupled with the general description given by the victims at the time, and their selection of you at various times from photo lineups and live lineups, that you were indeed one of the culprits who car jacked and kidnapped them. [¶] So I am going to conclude there was enough, that is, that there was substantial evidence, sufficient evidence, to support the jury’s verdict, even though admittedly there [were] some occasions when both of the victims had some difficulty picking you out, they ultimately did, and the jury believed them, and the verdict was supported by the evidence, and I am not going to disturb the jury’s verdict as it is supported by ample testimony of your identification.”
Defendant argues that the trial court deferred to the jury’s credibility finding instead of independently weighing the evidence. We disagree. As the court noted, it was present during the entire trial and, along with the jury, heard testimony regarding the photographic and live lineups, as well as testimony from all of the witnesses, including those who identified defendant as one of the culprits, and was thus able to determine whether there was sufficient evidence to support the jury’s verdict. The court specifically referred to evidence of defendant’s interaction with Reyes after the carjacking and witness identification of defendant as “very strong and incriminating,” and concluded the evidence supported the verdict. There is substantial evidence in the record to support that finding.
Out of several photographic lineups, Winney identified defendant in one, and further identified defendant by his face and voice in a live lineup. She also identified defendant at trial. Although Ferra was unable to identify defendant in lineups or at trial, Reyes positively identified defendant in a photo lineup and again in person at trial. Neither Winney nor Ferra identified Reyes in any of the photographic lineups as one of the three men who held them at gunpoint and stole the car.
Reyes’s testimony at trial, which was subject to cross-examination, was consistent with his story to the police at the time of his arrest, and was also consistent with the facts given by Winney and Ferra concerning defendant’s appearance, the timing of the events that took place, and details regarding the car.
By virtue of the trial court’s own statements on the record, we conclude that the court properly conducted an independent weighing of the evidence in ruling on the motion for a new trial. Our review of the record leads us to conclude that there is substantial evidence to support the trial court’s denial of that motion.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting a conviction for second degree robbery as to count one and to forward a certified copy of said amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur: SCOTLAND , P.J., NICHOLSON , J.