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People v. Tovar

California Court of Appeals, Fourth District, Third Division
Mar 28, 2008
No. G038162 (Cal. Ct. App. Mar. 28, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GILBERT TOVAR, Defendant and Appellant. G038162 California Court of Appeal, Fourth District, Third Division March 28, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06CF2254, David Hoffer, Judge.

Amanda F. Benedict, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SILLS, P. J.

A jury convicted Gilbert Tovar of active participation in the F-Troop criminal street gang (Pen. Code, § 186.22, subd. (a)) and exhibiting a gun in the presence of an occupant of a motor vehicle (§ 417.3). The jury found true allegations Tovar, in his capacity as an active F-Troop member, carried a concealed firearm in a vehicle (§ 12025, subds. (a)(1), (b)(3)), and that he exhibited a firearm “for the benefit of, at the direction of, and in association with” the F-troop criminal street gang (§ 186.22, subd. (b)(1)). The court sentenced Tovar to a five year prison term.

All further undesignated statutory references are to the Penal Code.

On appeal, Tovar contends the eyewitness’ out-of-court identification is insufficient as a matter of law to prove that he was the person who exhibited a gun in the presence of an occupant of a motor vehicle. We conclude the record contains solid, credible evidence linking Tovar to the commission of all the charged crimes and enhancements. For that reason, the judgment is affirmed.

I

FACTS

Prosecution Evidence

At approximately 9:00 p.m. on July 9, 2006, a pregnant Lorena Sanchez drove through a Santa Ana residential neighborhood with her two children, ages eight and two. At one point, she noticed a white SUV behind her car that was quickly closing the gap between them. She thought the driver of the white SUV wanted to get around her car, and Sanchez decided to stop to let the other driver pass. However, instead of passing Sanchez’s car, the driver pulled his white SUV along side her car, stopping approximately six feet from the driver’s side window.

Sanchez thought that perhaps the driver of the white SUV wanted to ask a question so she rolled down her car window. When Sanchez’s window was fully down, the driver of the white SUV, a young, Hispanic man, yelled, “What are you doing in my fucking neighborhood?” As he spoke, the man waved a semiautomatic handgun in the air so that Sanchez could see it and pointed it in her direction. Sanchez replied, “Excuse me.” The driver repeated the same statement, which caught the attention of Sanchez’s eight-year old son who was sitting in the front passenger seat. When the boy leaned forward to look at what was going on, the man responded “nothing,” and drove away.

Sanchez headed home, after a brief stop at a fast food restaurant, and called the police to report the incident. She told the officers the white SUV she had seen was either a Land Rover or an Izuzu Trooper. She described the driver as a young, male Hispanic, in his early 20’s, with a mustache, and wearing a beanie and a baby-blue sweater. Five days later, Santa Ana Police Officer Roland Andrade was patrolling the area where the incident occurred when he saw a white Land Rover. Andrade knew about the earlier incident and stopped the Land Rover. When he contacted the driver, Andrade found Tovar behind the wheel. Andrade compiled a “six-pack,” photographic lineup containing Tovar’s picture and showed it to Sanchez. Andrade told Sanchez the person who pointed a gun at her may or may not be in the lineup, and he had her sign a form verifying that she understood his admonishment.

At trial, Andrade testified that Sanchez immediately selected Tovar’s picture. When Andrade asked Sanchez if she was certain about her identification, she replied that she was positive the man in the picture was the same man who had waved a gun at her five days earlier. He also showed Sanchez a green, hooded sweatshirt Tovar had on at the time of his arrest, but Sanchez did not recognize the sweatshirt. Andrade interviewed Sanchez on two occasions, the day he showed her the photographic lineup and another day when he showed her the green sweatshirt. Andrade testified that during his second interview with Sanchez, she seemed scared, quiet, reserved, and intimidated.

At trial, Sanchez recounted the facts of the incident and the photographic lineup. She recalled Andrade coming to her house and showing her the photographic lineup. Sanchez said she “circled one [picture] that kind of looked like the person that was in the car.” She was unable to identify Tovar in court “because it was kind of dark, so I’m not really sure if that’s him or not because it was dark.” She also testified, “I couldn’t really tell anything about his face because it was dark in the car.”

In his capacity as the prosecution’s gang expert, Andrade testified that F-Troop is a well-established Santa Ana criminal street gang with approximately 400 members. He said that F-Troop has claimed an eight-mile square area of Santa Ana and protected it since the late 1960’s. He explained that brown is the F-Troop’s gang color, and that the gang has an identifiable graffiti symbol and recognizable hand sign. He explained that members of the F-Troop criminal street gang commit assaults and robberies, and they also sell narcotics.

According to Andrade, law enforcement officers have contacted Tovar on numerous occasions since 1994 when, at the age of 14, he was arrested for painting “Crazy F-Troop” on a wall. Between 2000 and 2003, police officers interviewed Tovar on at least eight occasions while he was in F-Troop’s claimed territory or while he was associating with F-Troop gang members. In 2002, Tovar admitted he was an F-Troop associate, and the officers knew him by his moniker, or gang nick name, “G-Man.” Tovar’s house was searched in 2002. At that time, officers found and confiscated a knife, gang clothing, gang-related photographs, and items with the F-Troop gang symbol. Andrade further testified that in February 2005, Tovar admitted friendly relationships with F-Troop gang members. Andrade testified that Tovar had no prior gang-related offenses, but he has been a suspect in several gang-related crimes. The prosecution introduced several photographs of Tovar, some of them with his friends. Andrade explained that in one of these photographs, Tovar is seen making the F-Troop hand sign.

In Andrade’s expert opinion, Tovar was an active F-Troop gang member at the time of this incident in July 2006. He based his opinion on the fact Tovar admitted “hanging” with other F-Troop gang members, and acknowledged his gang moniker “G-man,” and because Tovar is known to associate with F-Troop gang members in recognized F-Troop gang hang-outs. In addition, Andrade opined that Tovar brandished the gun at Sanchez for the benefit of his gang. Andrade explained that brandishing a gun at an average citizen, like many other crimes gang members commit, enhances the gang reputation. This type of crime also facilitates the gang’s purposes by instilling fear in the community and by making average community members reluctant to cooperate with the police or testify in court.

Defense Evidence

Elizabeth Romero, Tovar’s girlfriend of six years, testified that on July 9, 2006, she and Tovar spent the day together at Tovar’s house. She worked on a term paper while he watched TV. They went out one time, but returned home directly, and they drove her car. Romero stated that she left Tovar’s house around 10:15 p.m., and that Tovar was asleep when she left. There were at least five people in the house that day. Romero discounted reports that Tovar associated with the F-Troop criminal street gang or F-Troop gang members. She testified that she had never seen him wear gang clothing or possess gang-related materials, and she has never seen him with a gun. Romero further explained that Tovar’s family gave him the nickname G-Man.

Tovar also testified at trial. He also said that he did not leave home on July 9, 2006. Although he admitted owning a white Land Rover, Tovar denied driving it that day. He also denied owning a gun and said he never pointed a gun at Sanchez, or Sanchez’s eight-year-old child. Tovar admitted that he knew members of the F-Troop gang, but he denied being a gang member himself. He also admitted that his brother was the victim of a gang-related drive-by shooting.

Tovar also testified that he gets pulled over or harassed by police officers about 20 times a year. When the prosecutor confronted him with various photographs of himself displaying the F-Troop gang hand sign, Tovar acknowledged what he was doing in the pictures, but he denied that it meant he was an F-Troop gang member. He also admitted that he had been charged with sexual relations with a minor as a result of his relationship with Romero.

II

DISCUSSION

Tovar argues the jury gave undue weight to the results of the photographic lineup. He emphasizes the fact that Sanchez gave fairly generic descriptions of the suspect and the suspect vehicle, and her inability to identify him at trial, to argue that the prosecution produced insufficient evidence to support the jury’s verdict. However, well-established principles of appellate review mandate, absent inherent improbability or apparent falsity, that the testimony of one witness, if believed, is sufficient to sustain a conviction. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 306; People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.) This court does not decide the credibility of witnesses or reweigh the evidence, those are the functions of the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) An appellate court reviews the evidence in the light most favorable to the judgment, making all reasonable inferences and resolving all conflicts in the evidence in support of the judgment. (Ibid.)

True, Sanchez could not make an in-court identification of Tovar. However, she remembered seeing the photographic lineup Andrade assembled and remembered selecting one of the six pictures it contained. She testified the picture she selected “looked like” the perpetrator. She may have interjected some doubt by testifying that darkness made any identification difficult. Nevertheless, the jury also heard her testify that she was only five or six feet away from the person she later identified as Tovar, and that she selected Tovar’s picture out of a photographic lineup within five days of the incident. Moreover, the jury heard Andrade’s testimony that Sanchez identified Tovar’s picture immediately and without hesitation. They jury also heard Andrade give one possible explanation for Sanchez’s seemingly new-found reticence, i.e., a reasonable fear of gang retaliation. Regardless of whether the jury believed Sanchez backed-away somewhat from her earlier identification of Tovar out of fear gang retaliation, or whether she was simply suffering from the failure of recollection common to all witnesses, Tovar fails to demonstrate that her identification of him was either inherently unreliable or patently false. Under the circumstances, we cannot agree with Tovar that the jury gave undue weight to the results of the photographic lineup.

To the contrary, under well-established legal principles, the jury was free to give this evidence whatever weight they believed it deserved. The jury was instructed with CALCRIM No. 200 [duties of judge and jury], CALCRIM No. 226 [evaluation of witnesses], CALCRIM No. 301 [single witness’s testimony sufficient to prove any fact], CALCRIM No. 302 [evaluation conflicting evidence], and CALCRIM No. 315 [evaluation of eyewitness testimony]. With these instructions, the jury had all the tools it would need to evaluate Sanchez’s eyewitness testimony, and her identification of Tovar from the photographic lineup. “Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. [Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Tovar contends eyewitness testimony in general is inherently unreliable and untrustworthy, relying on United States v. Wade (1967) 388 U.S. 218, People v. Cardenas (1982) 31 Cal.3d 897 and People v. Bustamonte (1981) 30 Cal.3d 88. True, these cases and undoubtedly several more have discussed the short-comings of eyewitness testimony. Recognition of the problem has led to the creation of jury instructions (CALCRIM No. 315), and the availability of expert testimony on the issue. (See People v. Sanders (1995) 11 Cal.4th 475, 508.) However, this is not a case of conflicting eyewitness testimony or several inconsistent identifications, and nothing in the record suggests that this case involves cross-cultural factors. Moreover, Sanchez identified the perpetrator’s car as a white Land Rover or Izuzu Trooper. The fact Tovar was driving a white Land Rover in the area where this incident occurred is what led to his arrest, and these facts are independent of the photographic lineup. Consequently, Tovar fails to explain how the inherent unreliability of eyewitness testimony affected the outcome of his case.

III

DISPOSITION

The judgment is affirmed.

WE CONCUR: RYLAARSDAM, J., BEDSWORTH, J.


Summaries of

People v. Tovar

California Court of Appeals, Fourth District, Third Division
Mar 28, 2008
No. G038162 (Cal. Ct. App. Mar. 28, 2008)
Case details for

People v. Tovar

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GILBERT TOVAR, Defendant and…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 28, 2008

Citations

No. G038162 (Cal. Ct. App. Mar. 28, 2008)