Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. YA064639 Francis J. Hourigan III, Judge.
PETITION for writ of habeas corpus.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Steven Eugene Menser appeals from the judgment entered following a jury trial that resulted in his conviction for assault with a deadly weapon. Menser’s sentence was suspended and he was placed on probation, with the condition he serve time in jail and perform Cal Trans work.
Menser contends: (1) the prosecutor committed reversible misconduct by arguing evidence outside the record; (2) the trial court erred by failing to instruct on the lesser included offense of simple assault; and (3) the evidence was insufficient to support the conviction. In his petition for a writ of habeas corpus, which we consider concurrently with his appeal, Menser reiterates his argument that the prosecutor committed misconduct. Discerning no prejudicial error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s case.
On March 16, 2006, appellant Menser and Lee Smith were in the Los Angeles area on a business trip. At approximately 8:00 p.m. they met a mutual friend, Matthew Humiston, for drinks in Hermosa Beach. The group first patronized the Café Boogaloo, then moved to the nearby Blue 32 nightclub, and then returned to the Café Boogaloo. After midnight, Humiston went home, while Menser and Smith returned to the Blue 32 club. Smith and Menser were about the same height, age, and weight, and were similarly attired in dark jackets.
At approximately 12:30 a.m., Ryan Peterson and Michelle More were at the bar in the Blue 32 club when Menser approached. The club was crowded and loud. Menser and More struck up a conversation while Peterson ordered a drink from the bartender. It appeared to More that Menser was in a bad mood, so she jokingly raised the hood of his jacket onto his head. Menser became angry and said something like, “ ‘You fucking touch my hood one more time, I’ll fucking do something to you[,]’ ” and stated that he would hit or bite her “boob” if she did not get away. More was shocked and very uncomfortable with Menser’s comments. Wishing to avoid problems, she turned away.
Peterson thought he heard Menser say to More, “ ‘I’m going to bite your nipple off.’ ” Peterson told Menser he should not talk to a woman in that fashion, and asked him to leave More alone. Menser “stepped up in [Peterson’s] face” and became confrontational, saying, “ ‘Who are you? What are you going to do about it?’ ” Peterson responded that he “was nobody [and] wasn’t there to fight,” but that he wanted Menser to leave More alone. During this discussion Smith stepped up to Menser’s side. Peterson believed Menser and Smith were trying to pick a fight. Menser was slurring his words and appeared to be drunk.
A waitress advised Adam Ross, one of the managers of the Blue 32 club, that there was a fight brewing in the bar area. Ross, who was a friend of Peterson’s, saw Menser and Smith standing next to each other facing Peterson. More stood between Menser and Peterson, as if trying to intercede. When Ross approached, Peterson told him that Menser and Smith were intoxicated, had been rude to More, and were trying to pick a fight. Ross told Smith and Menser to step outside. They ignored him. Ross repeated his request and began guiding them out of the bar. Peterson leaned over to Menser and said, “ ‘Have a nice night, you guys are out of here.’ ”
As Peterson turned towards More, Menser hit Peterson over the head with a glass beer bottle that shattered on impact, spraying glass on More and on the floor. Peterson was knocked to the ground. He reflexively grabbed Smith from behind, believing Smith was the assailant and pulling him to the ground. The situation became chaotic. Ross and a bouncer immediately pushed either Menser or Smith from the bar; Ross was not sure which. However, the person was not bleeding.
The jury was shown a videotape of the incident taken from the nightclub’s security cameras. However, the video was apparently of poor quality, as the witnesses had difficulty identifying events or persons depicted in various portions of the film.
Shortly thereafter, Ross saw Menser getting into a taxicab outside the bar. When the taxi made a U-turn and traveled back in front of the bar, Ross managed to stop the cab until police arrived.
At approximately 1:10 a.m., Smith telephoned Humiston and told him he was sitting behind a dumpster in a parking lot near the bar, bleeding from an injury to his hand. Smith told Humiston that Menser had been in a fight, and asked if Humiston knew where he was. Smith stated that someone had attacked him (Smith) from behind, knocking him to the ground. Twenty minutes later, Smith called Humiston from his hotel room and asked Humiston to take him to the hospital. He was bleeding badly from his hand, had lost feeling in one of his fingers, and was turning blue.
Peterson was initially 100 percent certain he had tackled his assailant after he was struck, and so testified at the preliminary hearing. Upon reviewing a videotape of the incident numerous times, Peterson realized that the person he grabbed had an intact beer bottle in his hand, leading him to believe he had not tackled Menser, the assailant, but Smith instead. The parties stipulated that the person shown in the videotape being tackled by Peterson was Smith.
b. Defense evidence.
The crux of the defense case was that Smith, rather than Menser, hit Peterson with the beer bottle. Menser, testifying on his own behalf, denied hitting anyone with anything at the Blue 32 nightclub. He was annoyed that someone had pulled his hood until he saw More was the culprit. He said something before realizing it was More, but could not recall exactly what; however, he never stated he would bite her. When Peterson told him, “that’s unacceptable,” Menser did not know what he was talking about. Peterson “got in [Menser’s] face.” Menser turned away, but Peterson kept arguing with him. Ross approached and, without asking what had happened, told Menser to leave. Menser walked toward the door, and Ross pushed him out of the club. Smith was still inside the bar. Menser entered a waiting cab and told the driver to make a U-turn so they could pick up Smith. People surrounded the cab, stating, “ ‘There’s the guy from the bar.’ ” Menser was arrested and spent the night in jail. When Smith picked him up the next day, Smith told Menser, “ ‘The guy you were arguing with, I hit him. And a bottle crushed in my hand.’ ” Two weeks later, Menser asked Smith why Smith had not stepped forward and taken responsibility for what had happened. Smith stated, “ ‘I can’t do that,’ ” because he had been involved in a similar incident in Chicago. The parties stipulated that Smith was convicted of violating the public peace in Illinois.
2. Procedure.
Trial was by jury. Menser was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The jury found that Menser personally used a deadly or dangerous weapon, a beer bottle, during the assault. Menser’s motion for a new trial was denied. The trial court suspended sentence, placed Menser on formal probation, and ordered him to serve 60 weekend days in county jail and perform 240 hours of Cal Trans work. It also ordered Menser to pay $1,400 in direct victim restitution, and imposed a restitution fine and a court security fee. Menser appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Prosecutorial misconduct claim.
a. Additional facts.
At an Evidence Code section 402 hearing conducted during trial, Humiston testified that earlier in the evening, before the incident with Peterson transpired, Menser had been involved in a scuffle at the Blue 32 Club. Humiston heard Menser say, “ ‘That’s my foot’ ” twice. Humiston saw a man looking at Menser with a puzzled expression. Menser again stated, “ ‘That’s my foot.’ ” The other man looked angry, with an expression suggesting, “okay, buddy, you trying to start a fight with me?” Humiston had the impression that Menser was trying to start a fight with the other man. Menser and the other man began scuffling and pushing at each other. Patrons at the club formed a ring around the pair. The other man handed Menser a bottle of beer as an apparent conciliatory gesture, and the scuffle stopped. However the scuffle resumed when the other man then took the beer back. Humiston grabbed Menser’s arm and pulled him out of the club, saying, “Let’s get out of here.”
The prosecutor sought to introduce Humiston’s testimony as evidence of intent, identity, and motive under Evidence Code section 1101, subdivision (b). Defense counsel objected that the evidence was impermissible propensity evidence under Evidence Code section 1101, subdivision (a) and was unduly prejudicial under Evidence Code section 352. The trial court excluded the information, finding the two incidents were not sufficiently similar to prove identity, and there was “a significant [Evidence Code section] 352 issue.”
During his testimony before the jury, Humiston was not questioned about and did not testify regarding the scuffle.
For unknown reasons, after Menser’s testimony on direct, the trial court sua sponte reconsidered the admissibility of the evidence of the scuffle. Over defense objections, the court determined that Menser could be cross-examined about the scuffle because “any of [Menser’s] conduct on the night in question would be relevant” and “[w]hen you put a defendant on the stand, the scope of cross-examination is pretty wide.”
Menser does not challenge the trial court’s ruling that he could be cross-examined about the scuffle, and we do not consider the issue here.
The prosecutor then cross-examined Menser about the scuffle, eliciting the following testimony. During their first visit to the Blue 32 nightclub, a man stood on Menser’s foot. Menser told the man to “get off.” The man did not hear him, so Menser had to ask three times. The man turned around. There was some “dispute” and “discussion” between Menser and the other man, but no physical incident. Menser did not “[get] in [the] guy’s face.” Menser denied that the man and his friends “squar[ed] off,” almost resulting in a fight. Menser denied that the other man had a beer sent over to him and then pulled it away. Menser–apparently referring to Humiston’s testimony at the Evidence Code section 402 hearing–volunteered that he had not recalled the incident until Humiston brought it up, and that Humiston’s perception of the event might be different than his own. Over a defense objection, the prosecutor queried, “Don’t you remember Matt saying that he tried to get you away from this group of people because he thought that a fight was about to break out?” Menser responded, “I remember Matt saying that. . . . [¶] . . . I know Matt to have–different impressions of different things than I do. . . . You’re asking me what happened with me. I’m telling you to me, it was inconsequential. However Matt wants to characterize something that he saw, that’s up to Matt.”
Menser stated, “I remember the incident, and only after–contemplating [Humiston] bringing it up. Okay. I don’t remember it. It’s not something that I would have remembered as being any big deal.” “I vaguely remember[ed] the incident after Matt brought it up.” “It was not–anywhere near what you’re describing as an altercation. I had a discussion with someone. Someone–Matt’s perception may be different.” “It wasn’t that big of a deal. I wasn’t mad at those people. Nothing resulted from it. I only remember[ed] it after [Humiston brought] it up. It was a much bigger deal apparently to [Humiston] than it was to me.” In regard to the beer being offered and then withdrawn by the other man, Menser stated, “Matt remembers that. I don’t remember that.”
The prosecutor subsequently made the following argument to the jury. “It’s the defendant who is in the prior altercation that evening. This isn’t something that’s a–one off incident with Mr. Peterson that night. The defendant was in a prior altercation that evening. However you want to characterize that prior altercation is up to you. [¶] Whether it was a verbal altercation, or anything more than that. Words exchanged. The bottom line is the same night at the same bar, just earlier before this happened, the defendant got into it with some other guys. [¶] The defendant had already been drinking by the time he made it back to Blue 32. And the defendant, he didn’t want to talk about this. He called this inconsequential. But I submit to you it is very consequential. It has to do with the defendant’s behavior and his state of mind that night. [¶] And the evidence showed through Mr. Humiston–who was aligned with both the defendant and with Mr. Smith–had no reason to lie for or against either of them. The evidence showed that the defendant got into a verbal altercation with some guy that night who he thought was standing on his foot. [¶] And the defendant constantly many, many times said, ‘I don’t remember. I don’t remember the details.’ ” The prosecutor argued Menser was evasive during cross examination because he did not want it to appear that he was hostile or aggressive on the night of the assault. The prosecutor continued, “He didn’t want to tell you about that prior incident that we already heard about from Matt Humiston. He didn’t want to tell you about that. Because it made him look hostile and aggressive. [¶] Now, remember, Matt Humiston didn’t say that Lee Smith was acting hostilely [sic] and aggressively earlier that night. He said it was the defendant. The defendant was squaring off against him. When I tried to question the defendant about it, he said ‘I don’t really know, I don’t know. It’s not a big deal.’ ” The prosecutor argued that Menser’s testimony that he was not upset after asking the other patron three times to remove his foot, and that his encounter with the other patron was simple a discussion, was not credible. “[W]e know that that’s not actually what happens in these kinds of situations in bars. [¶] People don’t have little discussions. People have arguments. They have verbal altercations. This was not only a verbal altercation, it was long and drawn out. [¶] And we know this from Matt Humiston’s testimony. But once again, the defendant doesn’t want to go into these details because it paints a picture, gives you an idea of what he was like that night.”
Defense counsel did not object to the prosecutor’s argument. Instead, during the defense closing argument counsel pointed out, “there’s absolutely no evidence from Mr. Humiston before you about a prior fight. Or a prior altercation. None. [¶] Think about what he testified to. You ever hear him talk about somebody stepping on somebody’s foot?”
b. Discussion.
Menser contends the prosecutor committed misconduct by arguing to the jury that Humiston testified about the scuffle at Blue 32, when in fact Humiston never testified regarding the incident.
“ ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Gurule (2002) 28 Cal.4th 557, 657.) “[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa, supra, at p. 841; People v. Gurule, supra, at p. 657.) The prosecutor’s statements must be viewed in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.)
A prosecutor commits misconduct by referring during argument to matters outside the record. (People v. Cunningham (2001) 25 Cal.4th 926, 1026; People v. Pinholster (1992) 1 Cal.4th 865, 948.) Here, the prosecutor clearly erred by referencing Humiston’s testimony as the basis for a portion of his argument. Humiston never testified regarding the first incident at Blue 32. Further, the prosecutor committed misconduct by stating that, according to the evidence provided by Humiston, Menser and the unnamed man “squar[ed] off” and that the incident was long and drawn out. Menser denied squaring off when asked on cross-examination, and no other evidence was presented on the point. Likewise, there was no evidence the incident was long and drawn out; Menser testified, to the contrary, that the incident was inconsequential.
Menser’s claim of prosecutorial misconduct is waived because it was not raised below. “To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury[,]” or forfeit the claim on appeal. (People v. Brown (2003) 31 Cal.4th 518, 553; People v. Stanley (2006) 39 Cal.4th 913, 953; People v. Samayoa, supra, 15 Cal.4th at p. 841.) When the prosecutor incorrectly stated that Humiston’s testimony established Menser had been involved in an altercation earlier on the evening of the incident, defense counsel did not object. An objection and timely request for an admonition would not have been futile in the instant case, especially in that the prosecutor’s further references to the evidence could have been limited. (See People v. Gurule, supra, 28 Cal.4th at p. 657.)
Menser contends, however, in his appeal and in his writ petition, that his counsel was ineffective for failing to object. “A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails . . . .’ ” (People v. Holt (1997) 15 Cal.4th 619, 703; People v. Carter (2003) 30 Cal.4th 1166, 1211; Strickland v. Washington (1984) 466 U.S. 668, 687.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.)
Menser’s appellate counsel avers, in a declaration attached to the writ petition, that he contacted Menser’s trial counsel and questioned him regarding his failure to object to the improper prosecution argument. Trial counsel responded that “he believes he made the proper objections and addressed the situation in his closing argument.”
Assuming arguendo that counsel’s failure to object to the improper portion of closing argument fell below an objective standard of reasonableness, we discern no prejudice. Much of the prosecutor’s argument was proper. As noted, Menser was questioned about the incident at Blue 32 and admitted becoming involved in a “dispute” or “discussion” with another patron who stepped on his foot. He stated he had to ask the patron three times to get off his foot. He was upset that the man was standing on his foot. Menser also volunteered several times that Humiston may have had a different perspective regarding the seriousness of the incident. From this testimony, the jury was necessarily aware that Menser had been embroiled in a less than cordial encounter with an unidentified patron in the same bar earlier on the night of the assault. From Menser’s testimony, the prosecutor could reasonably have inferred that Menser was minimizing the incident. The prosecutor could also accurately argue that there was no evidence Smith had had any sort of disagreement with other bar patrons.
As we have noted, other portions of the prosecutor’s argument were not in evidence and could not reasonably be inferred from Menser’s testimony. Nonetheless, while we are troubled by the prosecutor’s careless misstatements, we cannot conclude, on the record before us, that the error was prejudicial. First, as noted, the jury was already aware of much of the evidence upon which the prosecutor’s argument was based. Other portions of the argument relating to the scuffle were reasonable inferences from the evidence. (See People v. Hill (1998) 17 Cal.4th 800, 819 [prosecutor has wide latitude during argument so long as the argument is a fair comment on the evidence, which includes reasonable inferences or deductions drawn therefrom]; People v. Williams (1997) 16 Cal.4th 153, 221 [a prosecutor may argue matters of common knowledge or illustrations drawn from common experience].) Second, defense counsel pointed out during his argument that Humiston had never testified about the event. Third, the jury was instructed that “[s]tatements made by the attorneys during the trial are not evidence” and that it was required to decide the case based on the evidence and the law. We presume the jury followed the court’s instructions. (People v. Pinholster, supra, 1 Cal.4th at p. 925.) Under these circumstances, we do not believe the objectionable portions of the prosecutor’s argument undermined confidence in the outcome of the trial, or that a result more favorable to Menser was likely had the objectionable portions of the argument been omitted.
2. The trial court did not commit reversible error by failing to instruct on the lesser included offense of simple assault.
The trial court instructed the jury on the elements of assault and on the elements of assault with a deadly weapon (CALJIC Nos. 9.00, 9.02.). The latter instruction defined deadly weapon as “any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce great bodily injury or death.” The jury was also instructed on a section 12022, subdivision (b)(1) personal use of a dangerous or deadly weapon enhancement, which similarly defined deadly or dangerous weapon. The jury was not given a verdict form for simple assault.
Menser contends the trial court erred by failing to give the jury the option of convicting him of simple assault as a lesser included offense of assault. (See People v. Jones (1981) 119 Cal.App.3d 749, 754 [simple assault is a lesser included offense of aggravated assault].) He posits that the victim’s injuries were not serious, and therefore the jury might have concluded that, on the evidence presented, the beer bottle was not a deadly weapon.
A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. (People v. Benavides (2005) 35 Cal.4th 69, 102.) The trial court therefore must instruct, sua sponte, on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case, including lesser included offenses supported by the evidence and defenses on which the defendant relies or which are not inconsistent with the defendant’s theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 162; People v. Heard (2003) 31 Cal.4th 946, 980; People v. Salas (2006) 37 Cal.4th 967, 982; People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Oropeza (2007) 151 Cal.App.4th 73, 78; People v. Bohana (2000) 84 Cal.App.4th 360, 370.) In determining whether an instruction is required, we do not determine the credibility of the defense evidence, but only whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Salas, supra, at p. 982.) A court is not obliged to instruct on theories that lack substantial evidentiary support. (People v. Manriquez (2005) 37 Cal.4th 547, 587-588; People v. Breverman, supra, 19 Cal.4th at p. 162.) “ ‘ “ ‘Substantial evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’ ” ’ [Citation.]” (People v. Benavides, supra, 35 Cal.4th at p. 102; People v. Oropeza, supra, 151 Cal.App.4th at p. 78; People v. Heard, supra, 31 Cal.4th at p. 981.)
On appeal, we independently review the question of whether the trial court erred by failing to instruct on a lesser included offense. (People v. Cook (2006) 39 Cal.4th 566, 596; People v. Manriquez, supra, 37 Cal.4th at p. 587; People v. Oropeza, supra, 151 Cal.App.4th at p. 78.) The erroneous failure to instruct sua sponte on a lesser included offense is, at most, an error of California law alone, and reversal is required only if it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 165.) Error in failing to instruct the jury on a lesser included offense is also harmless “ ‘ “when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.” ’ [Citations.]” (People v. Beames (2007) 40 Cal.4th 907, 928.)
Assuming arguendo that the jury should have been given the option of finding Menser guilty of simple assault, any error was not prejudicial. Here, the jury found true the enhancement allegation that Menser personally used “a deadly or dangerous weapon,” a beer bottle, during commission of the assault. Thus, the factual question posed by the omitted instruction was decided adversely to Menser when the jury found the enhancement allegation true.
In any event, Menser’s defense was primarily mistaken identity, i.e., that Smith, not Menser, hit Peterson with the bottle. Menser also argued that the videotape suggested no one hit Peterson with a bottle; instead, someone other than Menser threw a punch and a bottle broke when Peterson or Smith fell. As noted, the jury found true a separate allegation that Menser personally used a dangerous or deadly weapon, the beer bottle. Therefore the jury clearly rejected the defense theories. It is well settled that a bottle can be a deadly weapon. (People v. Snyder (1992) 11 Cal.App.4th 389, 393.) The fact the bottle may not actually have caused a serious injury in the particular case is not determinative. (People v. Williams (2001) 26 Cal.4th 779, 787.) It is highly unlikely the jury would have concluded Menser hit Peterson on the head with a glass beer bottle, but the bottle was not a deadly weapon. Besides the fact that such a bottle is generally heavy enough to serve as a club, it is also readily apparent that hitting someone will cause the glass to break, resulting in a high likelihood of serious injury from the broken glass. “Common experience dictates” that “[a] full liquor bottle carries significant weight and the neck of the bottle may serve as a handle, two characteristics of a club. Once broken, it is effective as a slashing weapon. Both uses make the bottle capable of producing death or great bodily injury, the definition of a ‘deadly weapon’ within the meaning of Penal Code section 245, subdivision (a).” (People v. Snyder, supra, 11 Cal.App.4th at p. 393.) Given the use to which the jury found the bottle was put, it is highly unlikely jurors would have believed the bottle was not a deadly weapon. Any purported error in failing to instruct on simple assault was harmless.
3. The evidence was sufficient to support the verdict.
Menser argues that, although he was identified by witnesses at trial as the assailant, “there was evidence elicited at trial that leads to the conclusion that this was a case of mistaken identity.” Therefore, he posits, the evidence was insufficient to support the conviction. We disagree.
When determining whether the evidence was sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “[T]he test of whether evidence is sufficient to support a conviction is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Holt, supra, 15 Cal.4th at p. 667.) “We draw all reasonable inferences in support of the judgment.” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at p. 331.)
Menser does not suggest that the elements of assault with a deadly weapon were unproven. His only contention is that the evidence he was the person who carried out the assault was deficient. This contention lacks merit. Three eyewitnesses testified that Menser was the assailant who hit Peterson with the bottle.
More testified that she was at the bar, facing Peterson, when she saw Menser strike Peterson on the head with a beer bottle. Menser was three to five feet away from her at the time. She identified Menser in court as the assailant. When asked how sure she was that Menser was the assailant, she replied, “I’m positive. I saw it. Him do it.” She had no doubt that Menser was the person who hit Peterson. According to More, the bar area was the most brightly lit part of the club, and she could clearly see Menser during their conversation. She recognized Menser seated in the taxicab after the incident. When Smith was brought into court, she testified that she was sure he was not the assailant.
Ross, the Blue 32 manager, testified that he saw Menser “take a beer bottle in his hand, and smash it on Mr. Peterson’s head.” He had a good opportunity to observe the assailant’s facial characteristics. Ross identified Menser to police at the scene as the person who hit Peterson with the bottle. He had “no doubt” and was “100 percent” certain Menser was the assailant. Ross was only two or three feet away from the assailant when the incident occurred. Ross testified that Smith looked “vaguely familiar” as one of the people at the club, but Ross had no doubt that Menser, not Smith, was the person who struck Peterson.
Victim Ryan Peterson testified that Menser struck him in the head with the bottle. After he turned from Menser to speak to More, he saw with his peripheral vision something coming at him. He flinched and turned in time to see Menser next to him. Peterson saw Menser’s face from a distance of one foot. Peterson identified Menser as the assailant in court, and stated that he had no doubt in his mind that Menser was the one who hit him with the bottle. Peterson had also identified Menser as the assailant at the scene.
This evidence was sufficient to prove Menser, not Smith, was the attacker. The uncorroborated testimony of a single witness may provide substantial evidence to prove any fact. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) “In the instant case, ‘there is in the record the inescapable fact of in-court eyewitness identification. That alone is sufficient to sustain the conviction.’ [Citation.]” (In re Gustavo M., supra, at p. 1497.) Where eyewitness identification is believed by the jury, that determination is binding on the reviewing court. (Ibid.) Furthermore, as the prosecutor argued, it was undisputed that Menser was the individual who spoke to More and was admonished by Peterson, giving him a motive to attack Peterson.
Menser acknowledges the eyewitness identifications but asserts that other, uncontradicted evidence shows the identifications were faulty. He points out it was undisputed that Smith and Menser were approximately the same height, age, and build, and were dressed similarly. Moreover, the club was crowded, dimly lit, and loud.
Menser also points to the fact that, at the preliminary hearing Peterson testified that he tackled the person who had hit him, and, until shortly before trial, remained certain he had tackled his assailant. The parties stipulated the person Peterson tackled was Smith, not Menser. However, as noted ante, after reviewing the videotape repeatedly, Peterson determined he had been mistaken and had not grabbed the assailant, but someone else, probably Smith.
Menser also points to the fact that Ross told a police officer at the scene that he had escorted Menser out of the bar. Ross then testified at the preliminary hearing that the man he escorted out of the bar was not the one who had hit Peterson. However, at trial Ross testified that the situation was chaotic, and he was unsure whether the man he had escorted out was the assailant or not.
In short, the testimony of two of the three eyewitnesses was not airtight. However, the witnesses explained the inconsistencies in their testimony at trial, and their explanations were neither physically impossible nor inherently improbable. Distilled to its essence, Menser’s argument is a request that we reweigh the evidence on appeal. This is not the function of an appellate court. (People v. Young, supra, 34 Cal.4th at p. 1181; People v. Maury (2003) 30 Cal.4th 342, 403; People v. Guerra (2006) 37 Cal.4th 1067, 1129 [we do not determine the facts, reweigh evidence, or reevaluate a witness’s credibility]; People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) “ ‘ “Although it is the duty of the jury 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 jury, 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 reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” [Citation.]’ ” (People v. Abilez (2007) 41 Cal.4th 472, 504.) We conclude the evidence was sufficient to support the verdict.
DISPOSITION
The judgment is affirmed. The petition is denied.
We concur: KLEIN, P. J., CROSKEY, J.