Opinion
G056969
02-14-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDRES VIZCARRA, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF2235) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part, reversed in part, and remanded with directions. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Andres Vizcarra of two counts of attempted murder (Pen. Code §§ 664, subd. (a)-187, subd. (a); all further statutory references are to this code unless otherwise indicated), robbery (§§ 211/212.5, subd. (c)), and other felonies arising from two different incidents. The jury also found true various gang and firearm enhancement allegations. The court sentenced Vizcarra to 59 years to life in prison.
Vizcarra argues there was insufficient evidence to convict him of the charges resulting from one of two incidents, because the only evidence that Vizcarra committed those crimes was an out of court identification. Vizcarra argues this identification should be disregarded because there was evidence another person committed the crimes. We disagree.
Vizcarra also argues he received ineffective assistance of counsel because his attorney did not seek to sever the two incidents. This matter is more properly addressed via a petition for writ of habeas corpus, and we decline to address it on appeal.
Finally, Vizcarra argues the court improperly stayed various enhancements attached to count 4 pursuant to section 654. We agree and remand the matter with directions for the court to consider striking or imposing those enhancements.
FACTS
We state only the facts of the incident which Vizcarra has challenged on appeal. The facts of the other incident are not relevant to the issues presented.
On June 16, 2016, A.C. was biking home from work while listening to music on headphones. A.C. saw a man wearing gloves cross the street ahead of him. A.C. crossed the street away from the man, but the man followed him. When A.C. stopped for a red light, the man hit him from behind and grabbed his headphones. A.C. began to fight with the man and the headphones fell to the ground. The man pulled out a gun and pointed it at A.C.'s chest. When the man bent down to pick up the headphones, A.C. attacked him again and forced him to drop the gun.
While A.C. was fighting with the first man, a second man kicked A.C. in the head. The second man went to help the first man and A.C. ran away. While he was running, he heard shouting followed by nine gun shots. A.C. looked back and saw the first man shooting at him.
Later that day, the police detained Anthony Martinez (Martinez) because he matched the description of the first man. However, at an infield showup, A.C. said Martinez was taller and heavier than the first man. The officer who conducted the infield showup testified A.C. said "he believed [the first man] would have some injuries on his face related to [A.C.] striking the suspect during the robbery." The officer testified Martinez had some bruising near his eye and cheek, and a scrap on his knee. Additionally, there was a right-handed Diesel brand glove discovered at the scene. A Diesel brand glove was also found in Martinez's bedroom.
A.C. later identified Vizcarra as the first man from a six-pack photo lineup. A.C. testified he was 100 percent sure he was correct, because he remembered the man's face "very well."
DISCUSSION
1. There Was Sufficient Evidence to Convict of the June 16 Charges.
Vizcarra argues there was insufficient evidence to convict him of the robbery and attempted murder of A.C. because Martinez "appears" to have committed the offenses and the identification of Vizcarra was not credible. We disagree.
"In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)
"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 (2006) 38 Cal.4th 412, 480.)
A.C.'s out-of-court identification was sufficient to prove Vizcarra was the perpetrator of the robbery and attempted murder of A.C. A.C. described the robbery in detail and explained his confidence in his identification of Vizcarra based on the photo lineup. A.C. also described why he did not believe Martinez was the robber. There was nothing inherently improbable about this evidence. Further, Vizcarra's counsel had a full opportunity to cross-examine A.C. and attack the credibility of his identification.
Our sole consideration is whether the evidence reasonably supported the jury's finding Vizcarra was the perpetrator, even though there was evidence to support a finding Martinez was the perpetrator. "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Robillard (1960) 55 Cal.2d 88, 93, overruled on another ground in People v. Satchell (1971) 6 Cal.3d 28, 35.) A.C.'s testimony was more than sufficient. 2. The Ineffective Assistance is More Properly Addressed by Habeas Corpus.
Vizcarra also argues his attorney was constitutionally ineffective for failing to file a motion to sever the two incidents. An allegation of ineffective assistance of counsel based on failing to bring a motion should be rejected unless (1) the trial court asked for an explanation for the failure to act and counsel could not provide one, or (2) there could not be a satisfactory explanation. (People v. Wilson (1992) 3 Cal.4th 926, 936.) This is because "in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney's course of conduct when the record on appeal does not illuminate the basis for the attorney's challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct." (Ibid.)
In this case, the record is silent as to why Vizcarra's counsel did not file a motion to sever the two incidents for trial, although counsel did move to sever the crime-bail-crime enhancement from the rest of the charges. Perhaps there was a tactical reason or other satisfactory explanation such as joinder was proper under section 954. Rather than speculate, we decline to address the merits of the issue in this appeal. 3. The Court Erred by Staying Some of the Sentence Enhancements.
Vizcarra argues, the Attorney General concedes, and we agree the court improperly stayed the gang (§ 186.22, subd. (b)) and firearm enhancements (§§ 12022. 5, subd. (a), 12022.53, subd. (b), (c)) attached to the count 4 robbery (§ 211).
The court could not stay the gang and firearm enhancements attached to the robbery because it did not stay the sentence for the robbery pursuant to section 654. (People v. Vega (2013) 214 Cal.App.4th 1387, 1396; People v. Wooten (2013) 214 Cal.App.4th 121, 130 ["if section 654 does not bar punishment for two crimes, then it cannot bar punishment for the same enhancements attached to those separate substantive offenses"].) Although the court could not stay the enhancements, it could strike or impose them. (§§ 186.22, subd. (g), 12022.5, subd. (c), 12022.53, subd. (h).)
Vizcarra argues that the "clear" intention of the trial court was to avoid imposing additional punishment for the enhancements, and we should, therefore, strike them rather than remand the matter to the trial court. It is true that in selecting a concurrent sentence for count 4, and staying the attached enhancements, it appears the court did not intend to impose additional time. However, the better course is to remand the matter to the trial court so it can exercise its sentencing discretion.
DISPOSITION
The sentence is reversed as to the stay of enhancements on count 4 only, and the matter is remanded to the trial court with directions to consider striking or imposing those enhancements. In all other respects the judgment is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.