Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCN219986, Joan P. Weber, Judge. Affirmed.
HALLER, J.
A jury convicted Kurt Yeager of commercial burglary (Pen. Code, § 459), acquiring access card information (§ 484e, subd. (d)) and using a counterfeit access card (§ 484f, subd. (a)). In a separate proceeding, Yeager admitted he had served three prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Yeager to five years in prison by imposing the midterm of two years on the burglary count and an additional year for each of the prior prison terms.
Statutory references are to the Penal Code unless otherwise specified.
Sentences on the other two counts were stayed pursuant to section 654.
Yeager appeals, contending there was insufficient evidence to support the convictions.
FACTS
At approximately 2:00 p.m. on August 27, 2006, Wal-Mart cashier Nichole Emrick had a male customer in her line who wanted to purchase DVD's and CD's estimated to cost hundreds of dollars. When the customer's attempts to swipe a Green Dot MasterCard through the card reader were unsuccessful, he handed the credit card and his driver's license to Emrick. Emrick tried to swipe the card through the reader on her register, but this too failed. Emrick then asked for assistance from Frances Rahorst, the service manager. Rahorst took the Green Dot MasterCard and Yeager's driver's license to the store's security office to verify whether the credit card was valid.
Rahorst was in the security office for at least 20 minutes while Yeager waited near Emrick's register. Yeager told Emrick that he was upset that it was taking so long for Rahorst to return with his driver's license and credit card. Eventually, he left the store without the driver's license and credit card. Rahorst called the sheriff's department and gave the credit card and the driver's license to authorities.
At trial, Emrick identified Yeager as the person depicted on the driver's license and the person who gave her the license and Green Dot MasterCard on August 27, 2006. Emrick testified that Yeager's hair appeared to look lighter at trial than her memory of him.
Rahorst also identified Yeager at trial. Rahorst testified that at the time of the incident, the man had darker hair than he did at trial, which took place more than one year after the crime. In response to a question, Rahorst agreed that at trial Yeager's hair was the color of salt and pepper.
Emrick and Rahorst testified on December 6, 2007.
The number on the Green Dot card was a MasterCard account number issued to Alisa Detwiler. Detwiler had not given anyone permission to use her card. The loss prevention manager for Green Dot MasterCard testified the card presented to Emrick was a bogus fabrication.
Jennifer Jordan, who lived with Yeager during the summer of 2006, testified for the defense. Jordan, her children and Yeager stayed at a Howard Johnson's Motel on the weekend of August 26 and 27, 2006. Jordan testified that Yeager was with her and the children at the motel pool throughout the afternoon of August 27, 2006. The motel receipt for the stay listed one adult and two children—not two adults and two children.
The motel is 2.5 miles from the Wal-Mart store.
DISCUSSION
Yeager contends his convictions were not supported by substantial evidence because of discrepancies in the testimony of Emrick and Rahorst. The contention is without merit.
In determining whether a conviction is supported by substantial evidence, an appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the [jury's] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding." (People v. Redmond (1969) 71 Cal.2d 745, 755.) Reversal is proper only if it appears " 'that upon no hypothesis whatever' " is there sufficient evidence to support the fact finder's conclusions. (People v. Bolin (1998) 18 Cal.4th 297, 331.) A reviewing court may not substitute its judgment for that of the jury. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
An in-court eyewitness identification is sufficient to sustain a conviction. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; see also People v. Cuevas (1995) 12 Cal.4th 252, 259, 271-272, 277.) Here, the jury was presented with both Emrick's and Rahorst's in-court eyewitness identifications of Yeager as the man who presented the fabricated Green Dot MasterCard on August 27, 2006, and his driver's license.
Yeager points to minor discrepancies involving the identification, such as the darker hair and Emrick's inability to remember if the man in the store had facial hair, but these are insignificant discrepancies. We do not view these minor discrepancies as reflective of an unreliable identification.
In any event, the mere presence of discrepancies between the accounts of eyewitnesses is not enough to impeach a jury's determination. "The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions." (In re Frederick G. (1979) 96 Cal.App.3d 353, 366; Evid. Code, § 411.) " 'To warrant the rejection by a reviewing court of statements given by a witness who has been believed by a [jury], there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.' " (People v. Jones (1970) 10 Cal.App.3d 237, 247.)
It is not necessary the identification of the defendant as the perpetrator of a crime be made positively or in a manner free from inconsistencies. (People v. Primo (1953) 121 Cal.App.2d 466, 468.) Positive identification, free from doubt, is not required. (People v. Jackson (1960) 183 Cal.App.2d 562, 568.)
It was entirely within the jury's discretion to evaluate the evidence and the credibility of Emrick and Rahorst, and we will not reweigh that evaluation. (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.) Any apparent uncertainty or discrepancy in the testimony of a witness simply presents evidentiary issues for the trier of fact to resolve. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 849 [alleged inconsistencies in witness's identification of defendant were mere discrepancies in the evidence the jury considered and resolved against defendant].) "Any contradictions . . . or other weakness in the witness's testimony are matters to be explored on cross-examination and argued to the trier of fact." (People v. Robertson (1989) 48 Cal.3d 18, 44.) "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial [and] where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (In re Gustavo M., supra, 214 Cal.App.3d at p. 1497.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., AARON, J.