Opinion
G043960 Super. Ct. No. 07CF0167
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCO EDGAR NEFTALI, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris., Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Franco Edgar Neftali contends the evidence does not support his conviction for murder. We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris., Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Franco Edgar Neftali contends the evidence does not support his conviction for murder. We affirm.
I
FACTS
The information charged defendant with the murder of Son Neou (Pen. Code, § 187, subd. (a); all undesignated statutory references are to the Penal Code), and further alleged defendant personally discharged a firearm proximately causing the death (§ 12022.53, subd. (d)). The jury found him guilty of first degree murder and found the firearm enhancing allegation true. The court sentenced defendant to 25 years to life in prison for the murder and imposed a consecutive term of 25 years to life for the discharge of the firearm.
Vith Yim was gambling in an apartment at the Bishop Manor Apartments on January 11, 2007. He arrived early in the day. The group ate and then gambled, playing dice. Yim was in charge of the game. He knew the gambling was being recorded by a camera in the apartment. The camera was there to make sure no one cheated.
Yim had moved from Utah three months earlier and knew defendant as "Negro." Defendant was gambling in the apartment that night and lost $300 to $400 in less than half an hour. There were six to eight people gambling at the table at that time. Defendant left the apartment after losing. The gambling continued and defendant returned. Defendant knocked "really loud" on the door. Someone let him in. Once inside defendant asked in English, "Who's the big dealer?"
The owner of the apartment said something Yim described as "words of caution." Someone else said, "There's nobody bigger than anybody." Defendant pulled out a gun, said, "don't talk," and "shut up," and pointed the gun at the group. Yim described the gun as looking "like the cowboy gun, you know, it's pretty long . . . ." He said the gun itself looked "like white chrome" and the handle was "like white plastic." He identified the gun in the courtroom as being the same color, but could not say if it was "the exact gun or not."
Defendant walked to the front of the table and stood in front of Yim, facing him. Yim, who said he does not speak English well, heard defendant say "Money in the pocket." Yim was frightened. He said there was no money in "the pocket." It was in his hand, so he put the money on the table. Yim put his head down and intended to hide some money, but heard a gunshot. He immediately "saw the ghost of the body of a China man fell down dead." Yim did not know the dead man's real name. He said they referred to the man, Son Neou, as Grandpa Chinese. Prior to being shot, Neou had been sitting by the television, drinking beer.
Neou died of a gunshot wound to his head.
The gun apparently fell to the ground after being fired. Yim said defendant picked it up and left.
Chan Leng lived in the apartment where the gambling took place, and required a Cambodian interpreter to testify. She had lived there for three or four years. She knew defendant as "Negro." He worked for the apartment complex. She knew him "for quite some time" and saw him daily.
Leng was aware of the gambling in the apartment and was asleep on the sofa at about 9:30 p.m. on the night of the shooting. Defendant had been gambling in the apartment earlier that evening. Leng heard "chaotic yelling" when she woke up. She heard someone ask, "Who's the big dealer?" She saw defendant pointing a "silverish white" gun at people and heard him say "Don't say a word." She then heard a gunshot. She saw the victim fall, saw defendant drop the gun, pick it back up, put it in his pocket, and leave the apartment through the front door. There were six to seven people gambling inside the apartment at the time of the shooting.
Evidence of gambling was cleaned up. The gambling table and the folding chairs were removed. Leng estimated the police arrived within 10 to 20 minutes of the shooting.
Leng confirmed the presence of the surveillance camera in the apartment and that it was intended to monitor the gambling. The camera was mounted on the wall, behind a potted tree. The camera runs while gambling is going on, but may not be on when the people are eating. Someone turned the camera off at one point that night. Leng put the video in a drawer and gave it to the police the next day after being specifically asked about the tape.
Souen Tep, Leng's husband, was drinking beer and watching people gamble that night. He knows defendant as "Negro." Tep saw defendant walk into the apartment. Defendant was holding a gun. He pointed the gun at people and asked, "Who's the big one?" Someone said something to defendant and defendant told the person to be quiet. Defendant walked back and forth then Tep heard a gunshot and saw the victim. The gun fell out of defendant's hand. Defendant picked it up and ran out the front door.
Tep said the gun was white. He also described it to police as a "cowboy looking" gun. Tep also told police he was not present at the time of the shooting and that it was four or five women gambling in the house, there were Cambodian men and women and a Hispanic man gambling.
Chitra Choeum was 16 years old at the time of the shooting. He saw defendant, who he knows as "Negro," "many times" before January 11, 2007. Defendant frequently gambled at the apartment and does maintenance at the apartment complex. Choeum was playing basketball in the apartment complex that night. He saw defendant and another person enter the apartment. He then heard a loud "kaboom." Defendant and the other person left the apartment "a couple of seconds later." Defendant carried a silver revolver in his right hand.
Choeum saw defendant walk toward the pool and into the recreation room. Defendant was not carrying the gun when he left the recreation room. Defendant went to the pool gate where he remained until the police arrived.
Police detained defendant at the scene. The victim's DNA was found on the right pant leg of his jeans. The DNA did not come from the victim's blood. Both of defendant's hands tested positive for gunshot residue. A forensic scientist testified gunshot residue is deposited on the hand when one shoots a firearm and the residue dissipates within four hours.
The next day, police executed search warrants for the defendant's automobile and his apartment in the same apartment complex. Defendant's vehicle was parked near the recreation room. Police found defendant's keys inside his apartment. One of the keys was to the recreation room. A sliding glass door of the recreation room was unlocked. Inside was a "defunct sauna room." It appeared as if somebody may have slept there. Some of the slats in the ceiling of the room had been removed, revealing a crawlspace or small attic above. Police found a loaded chrome .45-caliber Great Western revolver with a white handle inside the crawlspace. It had one spent cartridge in the cylinder. The firearm was registered to Justin Unsworth. On February 21, 2007 he reported the gun as having been stolen sometime since December 15, 2006.
The police found homework with Nery Gonzalez' name on it and men's clothing that would appear to fit Gonzalez, a man police contacted six days after the incident.
A video recording of the gambling inside the apartment was played for the jury. At one point it showed a hand putting money on the table, placing bets. Yim identified the hand as belonging to defendant. He also identified defendant as the person heard on the video causing a commotion, and telling someone, "Don't put your f. . . money in your pocket."
II
DISCUSSION
A conviction resting upon insufficient evidence violates due process. Whether viewed under the federal or state Constitution, the test is the same. "[T]he relevant question 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." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "An identical standard applies under the California Constitution." (People v. Staten (2000) 24 Cal.4th 434, 460.) In answering this question the appellate court "review[s] the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Defendant contends the evidence is insufficient in this matter because his identification as the killer was the result of a number of inherently incredible cross-racial identifications. His argument lacks merit. To be sure, the United States Supreme Court and the California Supreme Court have each recognized that eyewitness identifications are often unreliable. (United States v. Wade (1967) 388 U.S. 218, 228; People v. Cardenas (1982) 31 Cal.3d 897, 908.) Justice Frankfurter once said, "'The identification of strangers is proverbially untrustworthy.'" (United States v. Wade, supra, 388 U.S. at p. 228.) In Cardenas, the court accepted that "[e]yewitness identifications are especially unreliable where the witnesses identify a member of a race or ethnic group other than their own. [Citations.]" (People v. Cardenas, supra, 31 Cal.3d at p. 908.)
We note defendant's trial counsel did not make a motion to compel a lineup. (See Evans v. Superior Court (1974) 11 Cal.3d 617, 625 [defendant may compel lineup when a lineup would tend to resolve the likelihood of a mistaken identification and "eyewitness identification is shown to be a material issue"].)
Although the present case involves cross-racial identification, it did not involve identification of a stranger and eyewitness identification was not the only evidence tying defendant to the murder. Defendant was known to the witnesses. He worked at the apartment complex where the witnesses lived or gambled. Although the witnesses did not know defendant's name, they knew him by his nickname. A number of the witnesses had been gambling with defendant earlier that night. Choeum, who was playing basketball when he saw defendant leave the apartment with the gun, walk to and enter the recreation room and subsequently leave without the gun, also knew defendant. The gun was recovered from the ceiling above the sauna inside the recreation room. Defendant had a key to the recreation room. When defendant was arrested very shortly after the murder he had the victim's DNA on his pants and gunshot residue on his hands. This evidence, viewed in the light most favorable to the prosecution, supports the jury's conclusion that defendant was the killer. The fact that Leng has seen other Latino workers at the complex and did not know one from the another does not mean her identification of someone she knew and saw every day was suspect.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, ACTING P. J. ARONSON, J.