Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR200402
Bruiniers, J.
D’Vondre Woodards was convicted by jury of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). Woodards contends that the testimony at trial described events physically impossible or inherently improbable, and there was therefore insufficient evidence to support his conviction. We disagree and affirm the judgment.
All further code references are to the Penal Code unless otherwise indicated.
Woodards filed a concurrent petition for a writ of habeas corpus (No. A129026), alleging his trial counsel provided ineffective assistance. We address that petition in a separate order filed concurrently herewith.
I. Factual and Procedural Background
Woodards was charged by amended information with two counts of assault with a firearm (§ 245, subd. (a)(2)), and one count each of exhibiting a firearm to resist arrest (§ 417.8), possession of a firearm by a felon (§ 12021, subd. (a)(1)), concealing a firearm in a vehicle (§ 12025, subd. (a)(1)), and receiving stolen property (§ 496, subd. (a)). The prosecution dismissed the receiving stolen property charge prior to trial.
At trial, three Vallejo police officers-William Badour, Shane Bower, and Sanjay Ramrakha-testified about the incident underlying the charges. On October 23, 2008, the three uniformed officers were on patrol in an unmarked vehicle in a high-crime area on Mare Island Parkway. As the officers passed the Marin Market, Woodards ran out of the store and jumped into the back seat of a green Saturn. Suspecting a robbery or theft might be in progress, the officers pursued the Saturn. Ramrakha, who was driving, turned on the patrol car’s red lights, strobe lights and headlights to signal to the driver of the Saturn to stop.
The officers testified that, as the Saturn slowed in the area of the Brinkman Marina, Woodards got out of the back seat, backing out of the car with a gun in his hand and spun around toward the officers. Badour and Bower testified that the gun was briefly pointed at them; Ramrakha did not see Woodards point the gun at the officers.
The driver of the Saturn, Darius Mackbee, testified and confirmed that Woodards exited the vehicle and ran as the police attempted to pull them over, but denied having seen a gun in Woodards’s possession.
Woodards turned and ran. Badour and Bower both fired shots at Woodards. Ramrakha attempted to follow Woodards in the patrol car for a short distance. Hearing what he believed was gunfire, Ramrakha stopped the car, and the officers got out and pursued Woodards on foot.
Woodards ran into the marina parking lot. At one point during the officers’ pursuit, they lost sight of Woodards when he fell behind or near some shrubs. Woodards got up and began running again. Badour and Ramrakha testified that, when Woodards again began running, they still saw the gun in his hand. Believing Woodards was still armed and a threat to the officers and to others who might be in the parking lot, Bower and Ramrakha again fired shots at Woodards, who was wounded and fell.
Bower and Ramrakha handcuffed Woodards and asked him if he had been hit. Woodards said he had been hit, and asked why the officers had shot at him. Woodards did not have a gun on his person at that point. The officers asked Woodards where his gun was, and Woodards claimed he did not have a gun. Ramrakha found the gun about one minute later, between two boats in a boat yard behind a chain-link fence (which was approximately 10–12 feet high), about 30 to 60 feet from where Woodards was detained (and about 30 feet from where Woodards initially went down behind the bushes). The gun was along the path where Woodards had run. The officers testified they had not seen Woodards throw the gun.
The parties stipulated that Woodards had a prior felony marijuana conviction (Health & Saf. Code, § 11357, subd. (a)). The parties also stipulated that a forensic specialist at the San Mateo Sheriff’s Office forensic laboratory, if called, would testify that no usable latent fingerprints were found on the gun. Finally, the parties stipulated that a criminalist at the laboratory, if called, would testify that the gun, a 9 millimeter Browning semi-automatic pistol, was cocked and loaded when it was found.
Prior to submission of the case to the jury, the trial court dismissed the charge of concealing a firearm in a vehicle.
Woodards’s trial counsel argued that the officers’ testimony was inconsistent, and that if they had seen anything in Woodards’s hands, it was a cellphone found on his person following his arrest.
On April 17, 2009, the jury convicted Woodards of possession of a firearm by a felon, and acquitted him of the remaining charges. On June 15, 2009, the trial court suspended imposition of a two-year prison sentence and placed Woodards on probation for three years.
Woodards filed a timely notice of appeal.
II. Discussion
Woodards contends the testimony of Badour, Bower, and Ramrakha is insufficient to support his conviction because the officers’ version of the events was physically impossible or inherently improbable. Specifically, Woodards argues the location where the gun was ultimately found-behind a chain-link fence and 30–60 feet from where Woodards was detained-made his earlier possession of the gun impossible. He notes that the officers testified they did not see Woodards throw the gun during their pursuit, and testified Woodards still had the gun when he came up from behind the bushes (which Woodards argues would have been the only time he could have thrown the gun without the throw being seen by the officers). Similarly, Woodards suggests that the theory that he held and threw the gun was inconsistent with the physical evidence, including the fact that the gun had no fingerprints on it.
Woodards attacks other aspects of the officers’ testimony, suggesting that it would have been “awkward” for him to back out of the Saturn in the manner described by the officers, and that it is “unlikely” he stumbled or fell near the bushes given the layout of the marina parking lot. He also asserts the officers’ accounts of the incident are “riddled with inconsistencies.”
Woodards also argues his acquittal of most of the charges means that the officers’ testimony “was largely rejected by the jury and must now be rejected out of hand by this court.” We disagree.
In determining the sufficiency of the evidence, we ask whether “ ‘ “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.) We do not resolve credibility issues or evidentiary conflicts. (Ibid.) Instead, doubts about the credibility of witnesses generally should be left for the jury’s resolution. (People v. Hovarter (2008) 44 Cal.4th 983, 996; People v. Ennis (2010) 190 Cal.App.4th 721, 728 (Ennis).) Accordingly, “[c]onflicts and even testimony which is subject to justifiable suspicion do not justify reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” (People v. Huston (1943) 21 Cal.2d 690, 693 (Huston), overruled on another ground in People v. Burton (1961) 55 Cal.2d 328, 351–352.)
A reviewing court may reverse a judgment if the evidence supporting it is “inherently improbable, ” but testimony that “merely discloses unusual circumstances” does not fall within that category. (Huston, supra, 21 Cal.2d at p. 693; Ennis, supra, 190 Cal.App.4th at pp. 728–729.) “To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.]” (Huston, at p. 693.) Testimony may be rejected as inherently improbable or incredible only when it is “ ‘ “unbelievable per se, ” ’ physically impossible or ‘ “wholly unacceptable to reasonable minds.” ’ [Citations.]” (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) “Such cases are rare indeed. (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.)” (DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, 261 (DiQuisto).) A finding that testimony is inherently improbable is “so rare as to be almost nonexistent.” (Ennis, supra, 190 Cal.App.4th at p. 728.)
“The inherently improbable standard addresses the basic content of the testimony itself-i.e., could that have happened?-rather than the apparent credibility of the person testifying. Hence, the requirement that the improbability must be ‘inherent, ’ and the falsity apparent ‘without resorting to inferences or deductions.’ ([Huston], supra, 21 Cal.2d at p. 693.) In other words, the challenged evidence must be improbable ‘ “on its face” ’ (People v. Mayberry (1975) 15 Cal.3d 143, 150...), and thus we do not compare it to other evidence (except, perhaps, to certain universally accepted and judicially noticeable facts). The only question is: Does it seem possible that what the witness claimed to have happened actually happened? [Citation.]” (Ennis, supra, 190 Cal.App.4th at p. 729.)
Consistent with these principles the Supreme Court and Courts of Appeal have, in recent decisions, rejected claims that testimony was inherently improbable or incredible because it was contradicted by other evidence. (See People v. Thompson (2010) 49 Cal.4th 79, 124–125 (Thompson); DiQuisto, supra, 181 Cal.App.4th at p. 261; Ennis, supra, 190 Cal.App.4th at pp. 728–730.) For example, in Thompson, the Supreme Court rejected a claim that a witness’s testimony was inherently incredible because it contradicted physical evidence; the Court stated that “Mercurio’s testimony did not recount facts that were physically impossible, nor did it exhibit falsity on its face. Rather, defendant’s contention that Mercurio’s testimony was inherently incredible depends on the asserted inconsistencies that defendant argues exist between Mercurio’s testimony and other evidence presented at trial. We reject defendant’s attempt to reargue the evidence on appeal and reiterate that ‘it is not a proper appellate function to reassess the credibility of the witnesses.’ [Citation.]” (Thompson, supra, 49 Cal.4th at pp. 124–125.)
Similarly, in DiQuisto, the appellate court rejected the claim that a witness’s testimony was insufficient to support the judgment because it was “undermined” by his later testimony, and “ ‘contradicted’ ” by certain documentary evidence. (DiQuisto, supra, 181 Cal.App.4th at pp. 260–261.) Such weaknesses did not establish insufficiency of the evidence, because the claimed falsity of the testimony was “not ‘apparent without resorting to inferences or deductions.’ [Citation.]” (DiQuisto, supra, 181 Cal.App.4th at p. 261.)
Finally, in Ennis, the appellate court rejected the defendant’s claim that the evidence against him was inherently improbable. (Ennis, supra, 190 Cal.App.4th at pp. 728–730.) The court noted the defendant did not “claim it would be impossible for him to have committed the acts of sexual abuse attributed to him, but instead suggests the jury should have inferred or deduced from the circumstances in which these allegations arose, or the other evidence admitted in the case, that each of these witnesses was lying.” (Id. at p. 730.)
Woodards’s criticisms of the officers’ testimony in this case notwithstanding, nothing in the evidence presented to the jury meets the “inherent improbability” standard. All three officers testified they saw a gun in Woodards’s hand. This testimony alone, if believed by the jury, would be sufficient to support Woodards’s conviction for possession of a firearm. The officers’ testimony on this point does not describe events that are physically impossible, nor is it patently false. Instead, Woodards’s challenge to this testimony is that it is contradicted by other evidence, i.e., he claims the location where the gun was ultimately found and the lack of his fingerprints on the weapon undermines the officers’ testimony that he previously possessed the gun. This is simply an effort to reargue the evidence, and it is not our function to reassess the credibility of witnesses or weight of the evidence. (See Thompson, supra, 49 Cal.4th at pp. 124–125; DiQuisto, supra, 181 Cal.App.4th at p. 261; Ennis, supra, 190 Cal.App.4th at p. 729.)
Woodards also does not establish that it would have been physically impossible for him to have thrown the gun to the location where it was found. Ramrakha testified the gun was located along the path where Woodards had run. Woodards argues that the only time he could have thrown the gun without the throw being seen by the officers was when he was behind the bushes, that Woodards was alleged to have still had the gun when he came from behind the bushes, and the officers testified they did not see Woodards throw the gun during their pursuit. However, this suggests at most some inconsistency in the officers’ recollections about what they saw during their pursuit. These arguments do not demonstrate any of the testimony was improbable on its face; instead, the alleged falsity of the officers’ testimony is not apparent without resort to the inferences and deductions that Woodards seeks to have us draw. (See DiQuisto, supra, 181 Cal.App.4th at p. 261.)
Likewise, his claims that the officers’ accounts of other aspects of the incident are “riddled with inconsistencies” again do not demonstrate that the events described by the officers were physically impossible, and he does not show the officers’ testimony to be improbable on its face.
Woodards requested transmittal to this court of the exhibits admitted at trial (see Cal. Rules of Court, rule 8.224), which include photographs of the scene of the incident. However, Woodards does not explain how these exhibits would show that the events described in the officers’ testimony were impossible or inherently improbable. Because we do not reevaluate, or resolve conflicts in, the evidence, we have not obtained or reviewed these exhibits.
Finally, Woodards contends the jury rejected much of the officers’ testimony. During deliberations, the jury sent a note to the trial court saying that one juror believed all three officers had lied, and that the jurors could not reach a decision on the felon-in-possession charge (count four). Approximately one-half hour later, the jury stated it had reached verdicts. As noted above, the jury ultimately convicted Woodards on the felon-in-possession charge, and acquitted him on the other charges of assault with a firearm and brandishing/resisting arrest. Woodards suggests that this verdict was necessarily inconsistent and must have been a “compromise decision.” However, a verdict will not be overturned because a jury may have arrived at an inconsistent conclusion through “ ‘mistake, compromise, or lenity.’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 600.) Further, the jurors’ apparent conclusion that the prosecution had not established all the elements of the assault and brandishing charges did not require them to find that the prosecution had not proven that Woodards possessed a gun.
And, more relevant to the argument Woodards presents on appeal, any doubts that one or more jurors may have had as to the officers’ credibility on some issues do not establish the predicate necessary for him to prevail here-that the officers’ testimony was inherently improbable on its face.
III. Disposition
The judgment is affirmed.
We concur: Jones, P. J., Simons, J.