Opinion
B231183
12-30-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY VEGA, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA088697)
APPEAL from a judgment of the Superior Court of Los Angeles County. Tia Fisher, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
Anthony Vega appeals from the judgment following his conviction of four counts of first degree robbery. He contends two of his convictions must be reversed because they are not supported by substantial evidence. We disagree and affirm the judgment.
FACTS AND PROCEEDINGS BELOW
Vega was convicted of the home-invasion robberies of Li Li Wang and Nien Pin Lin (Counts I and II) and Xavier Mercado and Ernesto Montemayor (Counts III and IV). Because the only issue on appeal is the sufficiency of the evidence as to the latter two counts, we will only discuss those crimes.
The court sentenced Vega to a total prison sentence of 29 years, 8 months. He filed a timely appeal.
DISCUSSION
Mercado and his brother-in-law Montemayor were at Montemayor's home when a man wearing a black baseball cap and gloves entered the house, pointed a gun at them and ordered them to get on the floor. The man took a watch, cash and credit cards from Mercado and a watch, receipts and cash from Montemayor. When Montemayor was unable to work the combination to open a safe, Vega hit Montemayor on the back of the head with his gun. At this point, two other men entered and began rummaging through the house. The record does not show what items if any these men took. The men in the house appeared to be using walkie-talkies to communicate with someone outside the house. Before the robbers left they locked Mercado and Montemayor in a closet.
Ten days later Wang and her husband, Lin, were at home when two armed men entered. One of the men wore a mask that partially covered his face and a baseball cap. The men ordered Wang and Lin to get down on the floor of their kitchen. The man wearing the mask and cap put on one of Wang's yellow dishwashing gloves and began searching through nearby boxes and suitcases while the second man went upstairs. The masked man took a cell phone and cash from Lin. While the robbers were in the house Wang heard them communicating on walkie-talkies. One of the robbers hit Lin on the back of the head with a gun. The robbers tied Wang and Lin with bungee cords and locked them in a closet. After the men left Wang discovered her diamond ring, purse and glasses were gone from the upstairs bedroom. Wang told the investigating officers that one of the robbers had worn one of her yellow gloves and left it on the floor. The police booked the glove into evidence and tested it for the presence of DNA.
The following month the police arrested Vega and took booking photographs and a DNA sample. Vega's DNA matched DNA found on the yellow glove from the Wang/Lin robberies.
Two months after the robbery, Mercado identified Vega from a six-pack photographic lineup as the robber who wore the baseball cap. He identified Vega again at trial in part because he recognized Vega's voice as Vega acted as his own attorney. Mercado testified that he got a good look at Vega because the house lights were on in the areas where the robbery took place and he "stared" at Vega for "ten seconds or so as he's ordering us to get down." He did not get down immediately, Mercado testified, because at first he thought the "robbery" was a joke by one of Montemayor's friends.
On appeal Vega argues that the jury could not reasonably rely on Mercado's identification testimony because it was "inherently implausible." In support of this argument he cites impeachment evidence showing that when Mercado was 17 years old he pled guilty to filing a false police report, a misdemeanor. He also claims that on cross-examination Mercado "admitted that he really did not see [Vega] because he was face down on the floor during the robbery[.]"
Vega's argument goes to the credibility of Mercado's testimony, not its plausibility. The inherently implausible standard addresses the basic content of the testimony itself—could that have happened?—not the credibility of the person testifying that it did happen. (People v. Ennis (2010) 190 Cal.App.4th 721, 728.) As to Mercado's credibility, Vega misstates Mercado's testimony on cross-examination. Mercado did not admit that he did not see Vega because he was face down on the floor. He agreed that at the preliminary hearing he testified that he only saw the man with the baseball cap from the nose down. There was no testimony by Mercado on cross-examination about lying "face down on the floor." We find nothing "implausible" about Mercado's testimony. The jury resolved any doubts about his credibility in his favor as it was entitled to do. (People v. Lee (2011) 51 Cal.4th 620, 632.)
Further, the evidence against Vega was not limited to Mercado's identification testimony. His testimony was substantially corroborated by the "modus operandi" of the robberies and evidence that Vega's DNA matched DNA found in the yellow glove worn by one of the robbers. (Vega does not challenge the sufficiency of the evidence to convict him of the Wang/Lin robberies.) The robberies took place 10 days apart. In the Mercado/Montemayor robberies one of the robbers wore a black baseball cap and carried a gun. In the Wang/Lin robberies Vega wore a baseball cap and carried a gun. In the Mercado/Montemayor robberies the robber with the baseball cap worked with two or three other individuals. In the Wang/Lin robbery Vega worked with at least one other person. In both cases Vega wore gloves. Moreover, at both homes the robbers communicated via walkie-talkie, struck one of the victims on the back of the head with a gun and locked the victims in a closet.
Substantial evidence supports the jury's finding that Vega was one of the persons who robbed Mercado and Montemayor.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, J. We concur:
MALLANO, P. J.
CHANEY, J.