Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR915230
Sepulveda, J.
Defendant David Edward Row was convicted following a jury trial of one count of felony petty theft with a prior conviction (Pen. Code, §§ 484, subd. (a), 666-count 1) and one count of misdemeanor vandalism (§ 594, subd. (a)-count 2). Following a court trial, the trial court found true a prison prior (§ 667.5, subd. (b)). Defendant was sentenced to the midterm of two years on the theft conviction, plus one year on the prison prior, with a concurrent one-year term on the vandalism conviction, for a total of three years in prison. We reject defendant’s challenge to the sufficiency of the evidence supporting his convictions. However, we accept respondent’s concession that the trial court should have stayed defendant’s concurrent one-year sentence on his vandalism conviction pursuant to section 654. We order that defendant’s abstract of judgment be corrected accordingly. In all other respects, we affirm.
All statutory references are to the Penal Code.
I. Factual and Procedural Background
Clearlake resident Thomas Willhite, an area field manager for U-Haul International, had a U-Haul truck parked in front of his home on Arrowhead Road on March 13, 2008. In the early morning hours of March 13, one of Willhite’s neighbors heard a pickup truck with a loud muffler drive around the block. The neighbor looked out his window and determined that the truck parked near the Park Study Club, a business that was not open at that hour. The neighbor continued to look out the window, and a few minutes later he saw someone standing in front of a U-Haul truck, about 150 feet away. He observed the man for about five minutes, and he saw the man standing next to the gasoline nozzle of the truck. Although the neighbor could not see the man’s face, he could see that he was Caucasian, tall, had short hair and wide shoulders, and wore a dark blue hooded sweatshirt and what appeared to be long, baggy shorts. Because it appeared to the neighbor that the man standing next to the truck was siphoning gasoline, he called police.
Two Clearlake police officers responded to Arrowhead Road less than two minutes after they were dispatched at 2:27 a.m. Officers searched around Willhite’s U-Haul truck and another U-Haul truck parked nearby. They found a blue, five-gallon gasoline can next to Willhite’s truck. A hose ran from underneath the truck into the blue can, and the can was overflowing with gasoline. The fill hose to the gasoline tank had been cut, gasoline had been siphoned out with a garden hose, and the “fill receptacle” on the truck was damaged. Police also found two empty red, five-gallon gasoline cans near the second U-Haul truck.
As they were searching the area, the officers heard a vehicle start in the nearby parking lot of the Park Study Club. The neighbor who had called police also heard the vehicle start, and he yelled from his deck that the person who had siphoned gasoline was driving away. One of the police officers got into his patrol vehicle and followed the vehicle (a pickup truck).
The officer conducted a traffic stop of the pickup truck a short time later and found two men inside. Defendant was a passenger. Defendant was wearing a dark blue, hooded sweatshirt and light gray sweatpants, and the sweatpants were pushed up so that parts of defendant’s calves were exposed. Police found two or three empty two-and-a-half-gallon gasoline cans in the bed of the truck. Defendant and the other man in the truck told police that they had been talking in the parking lot of the Park Study Club. Although it was raining and snowing the morning of the crime, the officer who stopped the truck did not observe that defendant was noticeably wet.
An officer went to the home of the neighbor who had called police and asked him to accompany police to see whether he could identify the suspects. After admonishing the neighbor that the people who were detained were not necessarily guilty, police brought him to where the two men were being held. As the officer and the neighbor pulled up to the truck where the men were being held, the neighbor immediately identified defendant as the person he had seen. He based the identification on defendant’s height, the color of his hair, his blue sweatshirt, and the broadness of his shoulders. The neighbor later testified that defendant’s clothing matched the clothes he saw from his kitchen window, except that what he originally thought were baggy pants were actually “baggy sweats.” The neighbor also testified that although he had not been able to see defendant’s face when he was siphoning gasoline, he “just really felt it was the same person” based on defendant’s clothing, race, hair, and build. He could not identify the second suspect. Police arrested defendant.
A woman who lived across the street from the U-Haul truck that did not have its fuel line cut had a video surveillance camera that recorded the scene in front of her home the morning of the gasoline siphoning. She provided a DVD recording of the surveillance to police. The recording revealed a man who resembled defendant walking up to one of the U-Haul trucks carrying two gasoline cans, then siphoning gasoline out of the vehicle and into the cans.
The surveillance DVD was played for the jury. On October 6, 2009, this court granted defendant’s motion to augment the record to include the DVD, and the DVD was transferred to this court for review. A review of the DVD reveals that the man siphoning gasoline appears to be wearing a hooded sweatshirt, and portions of his calves are exposed.
II. Discussion
A. Substantial Evidence Supports Convictions.
Defendant first argues that insufficient evidence supports his convictions because of the circumstances surrounding the out-of-court eyewitness identification of him as the person who siphoned gasoline. We review defendant’s claim for substantial evidence, that is, “evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt.” (People v. Boyer (2006) 38 Cal.4th 412, 479.) We review the evidence in the light most favorable to the judgment and presume every fact the jury could reasonably have deduced from the evidence. (Id. at p. 480.) “Issues of witness credibility are for the jury.” (Ibid.)
“Identification of the defendant by a single eyewitness may be sufficient to prove the defendant’s identity as the perpetrator of a crime. [Citation.] Moreover, a testifying witness’s out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant’s guilt even if the witness does not confirm it in court. [Citations.]” (People v. Boyer, supra, 38 Cal.4th at p. 480.) Defendant argues that the identification of him as the person who siphoned gasoline “lacked any indicia of reliability” and therefore did not amount to substantial evidence that he was the person who siphoned gasoline. He relies on cases addressing the admissibility of eyewitness identification evidence (Neil v. Biggers (1972) 409 U.S. 188, 199-200; People v. Gordon (1990) 50 Cal.3d 1223, 1242, overruled on another ground in People v. Edwards (1991) 54 Cal.3d 787, 835); however, he did not challenge below the admissibility of the out-of-court eyewitness identification of him as the perpetrator, and he does not challenge its admissibility on appeal. We therefore need not analyze the factors used to evaluate whether an identification was reliable under the totality of the circumstances, which are used to determine whether the admissibility of an eyewitness identification satisfies due process concerns. (Neil v. Biggers, supra, at pp. 199-200.) Instead, we apply the substantial evidence test to determine the sufficiency of the out-of-court identification to support defendant’s criminal conviction (People v. Cuevas (1995) 12 Cal.4th 252, 276) and conclude that the substantial evidence test is satisfied here.
We agree with respondent, however, that the admission of the eyewitness identification of defendant did not violate due process. Defendant’s primary complaint is that the circumstances under which the identification took place undermined its reliability. There is nothing inherently unfair about having a witness view suspects in the field, as opposed to as part of a lineup. (Stovall v. Denno (1967) 388 U.S. 293, 302.) Here, the eyewitness was admonished that the people he would view were not necessarily guilty. Under the circumstances, the eyewitness identification was not inherently unfair.
The jury heard evidence that an eyewitness observed someone siphoning gasoline out of a truck; that defendant was found a short time later in the area in a truck that contained gasoline cans; that the person who observed the person siphoning gasoline identified defendant soon thereafter as the person he had seen based on his clothing, race, hair, and build; and that a DVD recording of the scene revealed a man matching defendant’s description siphoning gasoline. The trial court correctly instructed the jury with CALCRIM No. 315, setting forth the factors that jurors should consider when weighing eyewitness identification evidence. (People v. Wright (1988) 45 Cal.3d 1126, 1143 [proper to instruct jury on factors but leave explanation of effects of factors to argument by counsel and cross-examination of eyewitnesses].) Defendant’s counsel was given the opportunity to cross-examine the eyewitness about his vision, the lighting of the area on the morning in question, and the distance from which he observed someone siphoning gasoline. It was up to the jury to evaluate the neighbor’s testimony. (People v. Boyer, supra, 38 Cal.4th at p. 480.) Based on all the evidence presented, a reasonable jury could find that the prosecution had shown beyond a reasonable doubt that defendant was the person who siphoned gasoline from Willhite’s truck. (People v. Cuevas, supra, 12 Cal.4th at p. 276.)
As given in this case, the instruction provides: “You’ve heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance or duration of the observation? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? [¶] Were there any other circumstances affecting the witness’s ability to make an accurate identification? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, then you must find the defendant not guilty.” (See People v. Golde (2008) 163 Cal.App.4th 101, 119 [CALCRIM No. 315 proper instruction to assist jurors in evaluating identification testimony].)
B. Sentence on Vandalism Count Should Have Been Stayed.
Defendant next argues that his concurrent one-year sentence on his vandalism conviction should have been stayed pursuant to section 654. As respondent concedes, this argument has merit.
Section 654, subdivision (a) provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “[S]ection 654 ‘literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the “same act or omission.” ’ [Citation.] But decisions interpreting section 654 have extended its protection ‘to cases in which there are several offenses committed during “a course of conduct deemed to be indivisible in time.” [Citation.]’ [Citation.] ‘[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.]’ [Citation.]” (People v. Hicks (1993) 6 Cal.4th 784, 791.) There are two limitations on the scope of section 654’s ban on multiple punishments: where multiple victims are targeted by a single episode of violent criminal conduct, and where the acts constituting the various crimes committed during a single course of conduct serve separate criminal objectives. (People v. Davey (2005) 133 Cal.App.4th 384, 390.)
As the prosecutor’s closing argument made clear, the theory of the case was that defendant committed both petty theft and vandalism when he cut the fuel line of Willhite’s U-Haul truck to siphon gasoline. He argued that “the defendant damaged the fuel line in order to get at the gasoline that was inside.” Defendant’s convictions arose from a single course of conduct, and neither exception to the scope of section 654 applied. The sentence on the vandalism count should have been stayed.
III. Disposition
The one-year concurrent sentence imposed for defendant’s misdemeanor vandalism conviction (count 2) is ordered stayed pursuant to section 654, and his abstract of judgment shall be modified accordingly. The trial court is directed to prepare an amended abstract of judgment, and a certified copy of the modified abstract shall be forwarded to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: Ruvolo, P.J. Reardon, J.