Opinion
2d Crim. No. B210271
7-14-2009
THE PEOPLE, Plaintiff and Respondent, v. OMAR KALY RAMOS, Defendant and Appellant.
Richard E. Holly, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, E. Carlos Dominguez, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Omar Kaly Ramos appeals a judgment following conviction of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) We affirm.
FACTS AND PROCEDURAL HISTORY
In the late evening of February 22, 2008, James Schmid drove his motor scooter along Carpinteria Street in Santa Barbara to return home. Suddenly, he encountered three men in the street, one holding a wooden board and the other two holding tree branches. As he rode past the men, they swung the objects at him. The wooden board struck Schmid in the shoulder and scratched his scooter. The tree branches brushed him in the face and deposited small branches on the scooter. Schmid described the drive past the men as "a gauntlet" and demonstrated the blows as "bat swing[s]."
Schmid turned his scooter around and pursued his assailants as he telephoned the police emergency dispatcher with his cell telephone. The man with the wooden board (a picket-fence board) stood in the middle of the street. The dispatcher instructed Schmid not to pursue the men, but to await police assistance.
Within minutes, police officers arrived and detained three men found nearby in separate locations. In a field identification, Schmid identified Ramos as the man holding the fence board. He was "very confident" and "sure" that Ramos was one of his assailants. Schmid based his identification upon Ramoss "facial features, the personal, the person, his [height], his hair color, his skin color, [and] his eyes." Schmid also identified Ramos at trial, but was not "a hundred percent" sure because "[Ramoss] appearance may have changed." Schmid did not identify the other men detained by police because he did not recognize the clothing they wore.
The jury convicted Ramos of assault with a deadly weapon. The trial court sentenced him to a prison term of three years, imposed a $200 restitution fine and a $200 parole revocation restitution fine, and awarded him 267 days of presentence custody and conduct credits.
Ramos appeals and contends that 1) insufficient evidence supports the judgment and 2) the trial court erred by instructing with CALCRIM No. 318.
DISCUSSION
I.
Ramos argues that insufficient evidence supports his conviction of assault with a deadly weapon because Schmids one-person field identification was suggestive and rested upon a description of clothing. (People v. Cuevas (1995) 12 Cal.4th 252, 274 ["[T]he substantial evidence test used to determine the sufficiency of the evidence supporting a conviction provides additional protection against a dubious out-of-court identification"].) Ramos also asserts that Schmids testimony is not credible and is contradicted by police officer testimony. He points out that Schmid erred by describing the board-wielding assailant as wearing a blue hooded sweatshirt; Officer Gonzalez testified that the area had little street lighting; and that Schmid testified that he requires reading-eyeglasses. Ramos adds that police officers testified that Schmid reported that the objects did not strike his body and that one man swung a pipe (not a tree branch) at him.
In determining the sufficiency of evidence to support a judgment, we view the evidence and draw all reasonable inferences therefrom to determine whether reasonable and credible evidence supports the decision of the trier of fact. (People v. Boyer (2006) 38 Cal.4th 412, 480.) We do not reweigh the evidence nor do we reassess the credibility of witnesses. (Ibid.) "`"An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise."" (People v. Hovarter (2008) 44 Cal.4th 983, 1015.)
To set aside a finding of guilt, evidence of identity "must be so weak as to constitute practically no evidence at all." (In re Corey (1964) 230 Cal.App.2d 813, 825.) The strength or weakness of the identification, discrepancies in the testimony, failure of recollection and lack of certainty concern the weight of the evidence and are matters for consideration by the trier of fact. (Id. at pp. 825-826.) "It is not essential that a witness be free from doubt as to ones identity." (Id. at p. 826.) Moreover, identification may rest upon the actors size, appearance, voice, features or clothing. (Ibid.) When circumstances surrounding the identification are explored at trial and the trier of fact accepts the eyewitness identification, that determination is binding upon the reviewing court. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
Sufficient evidence supports Schmids identification of Ramos as the assailant who struck him with the board. Schmid testified that he saw the assailants when he drove past them and then later followed them down the street. He testified that he saw Ramos "standing in the middle of the street . . . holding [the] fence board. . . ." Police officers arrived within minutes of the dispatch and found three men nearby. There were few vehicles or pedestrians in the area at that time of night. Schmid was 100 percent sure that Ramos was his attacker. Discrepancies in Schmids identification testimony or the circumstances of his observations are factors for the trier of fact. It is not our function to reevaluate the evidence to determine whether the jury should have reached a different result. (People v. Prince (2007) 40 Cal.4th 1179, 1281.) Schmids testimony is neither physically impossible nor inherently improbable and is sufficient to support the conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181 [statement of general rule].)
II.
Ramos argues that the trial court erred by instructing with CALCRIM No. 318 because it likely misled and confused the jury in its critical task of evaluating Schmids field identification. He adds that the instruction does not discuss the prosecutors burden of proof or the factors affecting the accuracy of pretrial identification. Ramos asserts the error is prejudicial because his defense was mistaken identification.
CALCRIM No. 318 provides: "You have heard evidence of [a] statement[s] that a witness made before the trial. If you decide that the witness made (that/those) statement[s], you may use (that/those) statement[s] in two ways: [¶] 1. To evaluate whether the witnesss testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in (that/those) earlier statement[s] is true." Ramos asserts that the instruction expressly limited the jurys evaluation of Schmids pretrial identification by requiring it to accept the identification as true.
For several reasons, there is no error. CALCRIM No. 318 is an accurate statement of the law and is applicable to the pretrial statements Schmid made to police officers that differ from his testimony at trial regarding his personal injuries from the attack. At trial, Schmid testified that he suffered an abrasion on his right shoulder from the attack, but he reported earlier to police officers that he had not been injured. Ramos did not object to CALCRIM No. 318 nor did he request modification or amplification of the instruction regarding Schmids pretrial identification statements. He has forfeited this argument. (People v. Cox (1991) 53 Cal.3d 618, 669, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Forfeiture aside, there is no reasonable likelihood that the jury misunderstood the instruction in the manner Ramos contends. The instruction does not instruct the jury to give greater weight to the witnesss out-of-court statements than to his in-court testimony. The jury also received instructions regarding the evaluation of witness testimony (CALCRIM No. 226), the evaluation of conflicting evidence (CALCRIM No. 302), and the prosecutors burden of proof beyond a reasonable doubt (CALCRIM No. 220). Thus, viewed in context, the jury received proper guidance regarding evaluation of witness testimony and CALCRIM No. 318 did not encourage it to neglect or ignore testimony. (People v. Golde (2008) 163 Cal.App.4th 101, 119-120 [instruction does not encourage jury to ignore evidence by its use of word "may"]; People v. Felix (2008) 160 Cal.App.4th 849, 859 [in view of instructions as a whole, CALCRIM No. 318 does not invite jury to ignore or neglect evidence].)
The judgment is affirmed.
We concur:
YEGAN, J.
COFFEE, J.