Opinion
B196767
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. GARY YU, Defendant and Appellant.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant and appellant Gary Christopher Yu appeals from the judgment entered following a jury trial that resulted in his convictions for possession of a firearm by a felon, possession of a controlled substance with a firearm, receiving stolen property, burglary, grand theft of a firearm, and second degree robbery. Yu was sentenced to a prison term of 280 years to life.
Yu contends: (1) the trial court erred by denying his Pitchess motion; (2) identification evidence should have been suppressed because a pretrial photographic lineup was unduly suggestive; (3) the evidence was insufficient to support five of his convictions for burglary; and (4) the trial court abused its discretion by denying his Romero motion. We affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Yim burglary.
Irene Yim woke on July 4, 2005, to find her Rowland Heights home had been burglarized while her family slept. A briefcase containing a checkbook, earrings, keys, Yims 24-Hour Fitness gym membership card, and cash had been stolen from the house. A pair of Donna Karan sunglasses had been stolen from a car in the garage.
b. Wong burglary.
On July 5, 2005, when Theodore Wong and his wife returned to their Monterey Park home from work, they discovered it had been ransacked. Cash, checkbooks, travelers checks, jewelry, and a Tag Heuer wristwatch had been stolen. Later, persons unknown to the Wongs wrote checks on the accounts.
c. Qui burglary.
Sisters Lin Na Qui and Mei Na Qui lived together in a Monterey Park home. On July 10, 2005, at approximately 6:30 a.m., the women were asleep in separate bedrooms when Lin Na was awakened by a noise. It was light in the room, and she saw Yu removing things from a cabinet two to three feet from her bed. She observed him for several seconds, and then screamed, waking Mei Na. Yu fled while the Qui sisters followed. Among other things, Lin Nas purse, approximately $2,900 in cash, and Mei Nas credit card and drivers license had been taken from the home. Lin Na got "a pretty good" look at the robbers face when he was opening the drawer. She told an officer that the burglar was a Mexican male, approximately 20 years old, wearing a blue baseball cap, black shorts, and a blue shirt. She also stated that if she saw him again, she would be 60 percent certain of her identification. Lin Na tentatively identified Yu in a pretrial photographic lineup. She positively identified him as the burglar at the preliminary hearing and at trial.
For ease of reference, we hereinafter sometimes refer to the Qui sisters by their first names.
d. Fung burglary.
On July 14, 2005, David Fung returned from work to his Monterey Park home to discover it had been ransacked. Watches, jewelry, tax forms, money, a revolver, Fungs wifes passport, and Fungs wallet containing his drivers license and credit cards, were all missing.
e. Yang burglary and robbery.
On July 15, 2005, Hung Yuan Yang returned to his Hacienda Heights home at 4:30 p.m. after an absence of about an hour. As he stepped into his home from the garage, a White man with very short hair, wearing large glasses, placed a gun to his forehead. The man ordered Yang to sit on the ground and demanded that he empty his pockets. Yang complied, handing over his wallet, Rolex watch, car keys, and cellular telephone. The gunman ordered Yang into a small storage room and locked the door from the outside, stating that "they need 40 minutes." Later, the gunman returned and instructed Yang to wait for 30 minutes in a downstairs bathroom. Yang could hear loud noises and the voice of more than one person during this period. After the robbers departed, Yang found his home had been ransacked. The cash had been removed from his wallet. Jewelry and luggage containing a Dupont cigarette lighter had been taken. Yang was unable to identify the perpetrator from a six-pack photographic lineup.
f. Song/Xia burglary.
During the night of July 23 or early morning hours of July 24, 2005, a notebook computer, a suitcase, a cellular telephone, two watches, and a wallet containing money were stolen from the Hacienda Heights home of Guan Hao Xia and his wife, Lili Song, while they slept. A living room window was the burglars point of entry. Yus palm print was found on the living room window.
g. Zhu robbery.
On July 28, 2005, at approximately 2:30 p.m., Long Biao Zhu was in Monterey Park reading a newspaper in his parked car, with the windows down. Yu approached the passenger side of the car with a revolver. He cocked the revolvers hammer and pointed it at Zhu. Zhu gave Yu his wallet and two cellular telephones. At Yus instruction, Zhu turned out his pockets to demonstrate he had nothing else. Yu left after ordering Zhu to get in the back seat and partially disrobe. Zhu tentatively identified Yu as the robber in a pretrial six-pack photographic lineup, and positively identified him at trial.
h. Yus arrest.
On July 29, 2005, at approximately 7:00 a.m., Los Angeles County Sheriffs Deputy Todd Zerbel was patrolling in the City of Walnut in Los Angeles County when he noticed Yu sleeping in the drivers seat of a blue Mercedes Benz automobile parked in front of a home. Zerbel knocked on the window of the Mercedes. Yu woke up and opened his door. As Yu shifted his weight, Zerbel saw a fully loaded blue steel revolver on the seat between Yus legs. Yu was detained and the Mercedes was searched.
Zerbel observed a bag of methamphetamine in plain view. His subsequent search of the vehicle revealed numerous stolen items. Detectives completed a more thorough search after the car was taken to an impound lot. During those searches, the following items were found in the car: Yangs and Zhus cellular telephones; Wongs checkbook; Zhus wallet, work identification card, drivers license, medical appointment card, and credit cards; Yims gym membership card and car keys; Lin Na Quis DMV change of address card; Fungs drivers license; Yangs lighter case and car keys; and Xias laptop computer. The revolver Zerbel had observed on the seat was determined to have been stolen in the Fung burglary. The car also contained objects not linked to the victims of the aforementioned crimes, including miscellaneous jewelry, a portable television, seven additional wallets, and cameras.
Three pawn slips and a telephone book page with pawn shop addresses were also found in the car. Detectives visited the pawn shops that had issued the pawn slips and determined that on July 7, 2005, Yu pawned the Tag Heuer watch taken in the Wong burglary at Traders Loan and Jewelry in Reseda. Yu pawned Yangs Dupont lighter on July 26, 2005, at Crown City Loan and Jewelry in Pasadena. On July 25, 2005, Yu pawned the Rolex watch taken from the Yang house at Covina Jewelry and Loan. Yus fingerprints and name were on the pawn receipts.
Zhu testified that the gun found in the Mercedes looked like the same type of gun used to rob him.
2. Procedure.
Trial was by jury. Yu was convicted of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), four counts of receiving stolen property (§ 496, subd. (a)), six counts of first degree burglary (§ 459), grand theft of a firearm (§ 487, subd. (d)(2)), and second degree robbery (§ 211). The jury found Yu personally used a firearm during commission of the robbery (§ 12022.53, subd. (b)). After a bench trial, the court found Yu had suffered two prior serious or violent felonies (§ 667, subd. (a)(1); § 667, subds. (b)-(i)). The trial court heard and denied Yus Romero motion and motion for a new trial. It sentenced Yu to a term of 280 years to life in prison, and imposed a restitution fine, a suspended parole restitution fine, a court security fee, and a crime prevention fee. Yu appeals.
All further undesignated statutory reference are to the Penal Code.
DISCUSSION
1. The trial court properly denied Yus Pitchess motion.
a. Additional facts.
Prior to trial, Yu filed a Pitchess motion seeking personnel records of Deputy Zerbel and of Detective Gabriel Escarsega of the Monterey Park Police Department, who had conducted a pretrial photographic lineup procedure with victim Lin Na Qui. The motion sought personnel records concerning: "acts of aggressive behavior, coercive conduct[,] violation of constitutional rights, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, illegal search/seizure; false arrest, perjury, dishonesty, writing of false police reports, writing of false police reports to cover up the use of excessive force, planting of evidence, false or misleading internal reports including but not limited to false overtime or medical reports, and any other evidence of misconduct amounting to moral turpitude . . . ." Defense counsel averred that the materials sought would be used by the defense for impeachment and cross-examination, and as a tool for the discovery of other evidence.
Trial counsels declaration in support of the motion stated the following. Deputy Zerbels report stated that he came upon Yus legally parked car, with Yu asleep behind the wheel. At the preliminary hearing, Zerbel testified that he knocked on the window, waking Yu. Yu then opened the door and spoke to Zerbel. The handgun was in Zerbels plain view resting on the drivers seat between Yus legs. Zerbel ordered Yu out of the vehicle, arrested him, and searched the vehicle. Counsels declaration averred, "It is the defense contention that those facts are untrue; while Mr. Yu was asleep and eventually awakened by the officer, the door was not opened by Mr. Yu but rather the officer. Further, the revolver was not in plain view on the drivers seat as stated by Deputy Zerbel, and Mr. Yu did not hav[e] knowing possession of it." Counsel averred that the "significant factual differences" were intentional fabrications that were relevant both to the issue of probable cause to arrest and "for knowledge [of] the . . . firearm on the part of the defendant."
Counsels declaration further averred, in regard to Detective Escarsega, that "the out-of-court photo-identifications allegedly made by [Lin Na] Qui were contaminated and [the] identification [was] the product of undue influence and suggestion or telling the witne[ss] that the crimes were committed by Mr. Yu, the individual depicted in photo #6. This tainting of the identification . . . process was accomplished by Detective [Escarsega] . . . resulting in an erroneous identification." Lin Na had initially told an investigating officer that she would be unable to identify anyone, but three weeks later identified Yu in the photographic lineup. It was "inconsistent that she could identify anyone after truthfully responding that she could three weeks later [sic]."
As relevant here, the following materials were attached to Yus motion: (1) a police incident report and a supplemental report regarding Zerbels arrest of Yu; (2) a police report memorializing Lin Na Quis identification of Yu in the photographic lineup; (3) a report regarding the Qui burglary prepared by an unidentified officer; and (4) a copy of the photographic lineup.
The Pitchess motion also included police reports and materials related to the crimes against other victims. Those materials are not relevant to the contentions on appeal.
The motion was opposed by the Los Angeles County Sheriffs Department and the City of Monterey Park.
After a hearing, the trial court denied the motion, concluding Yu had not established good cause for in camera review of the requested police personnel records.
b. Discussion.
(i) Applicable legal principles.
Evidence Code sections 1043 and 1045 establish a two-step procedure for a criminal defendants Pitchess discovery of peace officer records. (People v. Samuels (2005) 36 Cal.4th 96, 109; People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1472-1473; California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9.) "To initiate discovery, the defendant must file a motion supported by affidavits showing `good cause for the discovery, first by demonstrating the materiality of the information to the pending litigation, and second by `stating upon reasonable belief that the police agency has the records or information at issue. [Citation.]" (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) If a defendant shows good cause, the trial court examines the material sought in camera to determine whether disclosure should be made and discloses "only that information falling within the statutorily defined standards of relevance." (Ibid.) The statutory scheme balances the peace officers claim to confidentiality and the defendants compelling interest in all information pertinent to the defense. (People v. Samuels, supra, at p. 109.)
Warrick v. Superior Court, supra, 35 Cal.4th 1011, clarified the good cause standard. "There is a `relatively low threshold for establishing the good cause necessary to compel in camera review by the court. [Citations.]" (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) To establish good cause, "defense counsels declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges" and articulate how the discovery sought might lead to relevant evidence. (Warrick, supra, at p. 1024.) The defense must present "a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Id. at p. 1025; People v. Thompson, supra, at p. 1316.) "A scenario sufficient to establish a plausible factual foundation `is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. [Citation.]" (People v. Thompson, supra, at p. 1316.) Depending on the facts of the case, "the denial of facts described in the police report may establish a plausible factual foundation." (Ibid.; Warrick, at pp. 1024-1025.) A defendant need not establish that it is reasonably probable his version of events actually occurred, show that his story is persuasive or credible, or establish a motive for the alleged officer misconduct. (Warrick, at pp. 1025-1026.)
Discovery is limited to instances of officer misconduct related to the misconduct asserted by the defendant. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1021.)
Trial courts are vested with broad discretion when ruling on Pitchess motions (People v. Memro (1995) 11 Cal.4th 786, 832), and we review a trial courts ruling for abuse. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992; People v. Mooc (2001) 26 Cal.4th 1216, 1228; People v. Hughes (2002) 27 Cal.4th 287, 330.)
(ii) The trial court did not abuse its discretion by denying Yus Pitchess motion.
There was no abuse of discretion here. First, the motion was overbroad. Yu did not contend that either officer acted aggressively toward him, planted evidence, or wrote a false police report to cover up the use of excessive force, yet his motion sought complaints related to these categories. Records related to these categories of information were irrelevant and not subject to in camera review. "A request for information that is irrelevant to the pending charges does not satisfy the specificity requirement." (People v. Hill (2005) 131 Cal.App.4th 1089, 1096, fn. 7; Warrick v. Superior Court, supra, 35 Cal.4th at p. 1021; People v. Hustead (1999) 74 Cal.App.4th 410, 416.) A "showing of good cause must be based on a discovery request which is tailored to the specific officer misconduct that is alleged." (California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th at p. 1021 [when a defendant asserts his confession is coerced, a discovery request seeking all excessive force complaints is overly broad; only complaints by persons who alleged coercive techniques in questioning are relevant].)
Yus motion also failed to establish good cause for in camera review of documents related to dishonesty. Yus motion did not dispute the key points of Zerbels account of the arrest. Yu did not deny that he was sleeping in the car and was awakened by the officer, or that the gun and stolen property were in the car. Instead, Yus motion pointed to only three purported discrepancies between his and Zerbels accounts: (1) Yu did not have knowing possession of the gun; (2) the gun was "not in plain view on the drivers seat," and (3) Zerbel, not Yu, opened the car door.
To establish good cause, a defendant must present a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents, and supports the defense to the proposed charges. Yus counsels declaration did not set forth a specific, plausible factual scenario of officer misconduct that would have supported the defense at trial. (See People v. Thompson, supra, 141 Cal.App.4th at p. 1316; Warrick v. Superior Court, supra, 35 Cal.4th at p.1026.) First, the allegation that Yu did not have "knowing possession" of the gun did not suggest any officer misconduct. Yu did not deny that he was in the car with the gun, and did not deny that Zerbel found him in the car with the gun. The question of whether Yus possession of the gun was knowing was unrelated to the question of the officers honesty or misconduct.
Second, although Yu asserted the gun was not in plain view, he did not deny it was in the car or on the seat. The motion did not explain where in the car the gun was purportedly located. Counsels declaration was purely conclusory and failed to sufficiently aver that the gun was not actually in plain view. Moreover, Yus motion suggested no nonculpable explanation for the presence of the gun in the car and did not adequately explain his own actions in a manner that would assist his defense at trial. (People v. Thompson, supra, 141 Cal.App.4th at p. 1317.) "This showing is insufficient because it is not internally consistent or complete. We do not reject [the defendants] explanation because it lacked credibility, but because it does not present a factual account of the scope of the alleged police misconduct, and does not explain [the defendants] own actions in a manner that adequately supports his defense." (Ibid.)
Third, Yu asserts that Zerbel opened the door to the car. Even if true, this fact has no meaningful bearing on the issues at trial and would have done nothing to assist in Yus defense at trial. As noted, in his Pitchess motion Yu did not dispute that the gun, methamphetamine, and stolen goods were in the car with him. Zerbels purported door-opening would not have provided exculpatory evidence at trial and had no bearing on the question of why Yu was in a car with drugs, a gun, and a great deal of stolen property. (Cf. Warrick v. Superior Court, supra, 35 Cal.4th at p. 1027 [defendant established specific factual scenario where he explained his conduct, a reason for police actions, and an exculpatory explanation for the drugs found on the ground near him].) Yus motion did not present a specific factual scenario that was plausible when read in light of the pertinent documents and undisputed circumstances. (See People v. Thompson, supra, 141 Cal.App.4th at p. 1316.) To the extent Yu intends to contend the fact Zerbel opened the door would have materially assisted the defense suppression motion, he offers no authority or factual argument in support.
Similarly, the motion failed to establish good cause for in camera review of records related to Detective Escarsega. Yu alleged that Lin Nas pretrial photographic identification (1) had been "contaminated"; (2) was obtained through the detectives "undue influence"; and (3) Escarsega told Lin Na that Yu was the perpetrator. However, the motion set forth no facts regarding how the witness was coerced, or how the photographic lineup was "contaminated." Yu did not deny being the person who burglarized the Qui home. Moreover, according to the police report, "[Lin Na] stated that she was sleeping in her bedroom when she was awaken[ed] by a sound and saw a M/H [male Hispanic] approx[imately] 20 [years] of age wearing a blue baseball cap, blue T-shirt and black shorts standing next to her nightstand which was south of the bed." Thus, Lin Na clearly observed the perpetrator during the burglary and described aspects of his appearance to police. Nothing about her account made it impossible that she could identify the culprit.
Likewise, the motion failed to explain the basis for the assertion that Escarsega acted improperly or told Lin Na that Yu was the perpetrator. The only purported basis for Yus assertion was that Lin Na initially told an investigating officer she would be unable to identify anyone, but three weeks later identified Yu in the photographic lineup conducted by Escarsega. As the trial court concluded, Yus theory was not based on a factual scenario but on an unwarranted "leap in logic." The fact a witness at one point believes she would be unable to identify the perpetrator of a crime, but later makes such an identification, does not automatically suggest officers involved in the identification procedure engaged in misconduct or coerced the identification. As the trial court concluded, Yu did not present a specific factual scenario of officer misconduct that was plausible when read in light of the relevant documents. As explained in People v. Thompson, supra, 141 Cal.App.4th at pages 1318-1319, "We are aware that [the defendant] need not present a factual scenario that is reasonably likely to have occurred or is persuasive or even credible. [Citation.] Further, we cannot conclude that [the defendants] scenario is totally beyond the realm of possibility. [The defendants] denials `might or could have occurred in the sense that virtually anything is possible. Warrick did not redefine the word `plausible as synonymous with `possible, and does not require an in camera review based on a showing that is merely imaginable or conceivable and, therefore, not patently impossible. Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations."
The threshold for good cause is low; it is not, however, nonexistent. Yus Pitchess motion failed to meet the low threshold good cause showing required by Warrick, and was properly denied.
2. The pretrial photographic lineup was not unduly suggestive.
In a motion in limine, Yu sought to exclude Lin Nas pretrial identification of him, as well as any subsequent in-court identification. He contended that the pretrial photographic lineup was unduly suggestive because Lin Na had described the burglar as Mexican, and no photographs of Hispanic persons, other than Yu, were included in the photographic lineup.
The trial court conducted a hearing on the motion out of the presence of the jury. At that hearing, Lin Na testified that she told Officer Brenda Iglesias, who arrived at her home immediately after the burglary, that she could not be 100 percent certain she would be able to identify the culprit because events transpired quickly. She told the officer the perpetrator was a Mexican in his 20s.
According to Officer Iglesias, Lin Na described the burglar as an Hispanic man, approximately 20 years old, medium complected, with short hair, approximately six feet tall, wearing a blue baseball cap, a blue T-shirt, and black shorts. Lin Na could not recall the color of his eyes or whether he had facial hair. Lin Na said she would not be able to identify the burglar if she saw him again.
When Lin Na viewed the photographic lineup approximately three weeks later, she identified Yu as the perpetrator with 60 percent certainty. She explained she was "Not looking for [a] Mexican. Im looking for the person that I can recall was in my bedroom. I have [a] vivid memory." The photograph she identified appeared to her to be of a Mexican individual.
The trial court examined the six-pack photographic lineup and stated, "The racial makeup troubles me. Its — Im not sure if its because the defendant may have — these are impossible things to describe. Its so subjective, whether the defendant has more Latino features with some smattering of Asian features. [¶] But the photos . . . in the three and five spot[s] look more, to me, to be African-American than Latino features." The prosecutor disagreed, and observed that Yu had both Asian and Latino features. The trial court ruled that while it would have liked "a better six-pack," and it was a "close call," the photographic lineup was not overly suggestive. The court pointed out that "the complexion of the people in the six-pack, the lighting in the six-pack[,] . . . balance[d] it out . . . ."
Yu argues the photographic lineup was unduly suggestive because other than his own photograph, no photographs of Latino subjects were included in the photographic lineup. We disagree.
"Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable." (People v. Yeoman (2003) 31 Cal.4th 93, 123; Manson v. Brathwaite (1977) 432 U.S. 98, 106-114; People v. Cunningham (2001) 25 Cal.4th 926, 989.) A pretrial identification procedure is unfair if it suggests in advance the identity of the person the police suspect of the crime. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) "The question is whether anything caused defendant to `stand out from the others in a way that would suggest the witness should select him." (People v. Carpenter (1997) 15 Cal.4th 312, 367; People v. Yeoman, supra, at p. 124; People v. Cunningham, supra, at p. 990.) The defendant bears the burden of demonstrating the identification procedure was unreliable. (People v. Cunningham, supra, at p. 989.) Unfairness must be proved as a " `demonstrable reality, not just speculation." (People v. Contreras (1993) 17 Cal.App.4th 813, 819.)
It remains unsettled whether suggestiveness is a predominantly factual mixed question subject to deferential review, or a question of law subject to de novo review. (People v. Ochoa (1998) 19 Cal.4th 353, 413; People v. Nguyen (1994) 23 Cal.App.4th 32, 38.) Under either standard, however, Yus challenge to the identification procedures lacks merit.
We have reviewed the photographic lineup and agree with the trial court that it was not unduly suggestive. The subjects all appear to be the same age and build. All have dark hair. Some of the subjects have predominantly Asian features, but others, including Yu, appear to be of mixed ancestry. Yus photograph does not stand out as distinctively different than the other photographs. "[T]here is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspects photograph is much more distinguishable from the others in the lineup." (People v. Brandon, supra, 32 Cal.App.4th at p. 1052; People v. Carpenter, supra, 15 Cal.4th at p. 367 ["Because human beings do not look exactly alike, differences are inevitable."].) Indeed, an identification procedure is sufficiently neutral where the subjects are " `similar in age, complexion, physical features and build . . . . [Citation.]" (People v. Leung (1992) 5 Cal.App.4th 482, 500; People v. Wimberly (1992) 5 Cal.App.4th 773, 789-790.)
Because there was no constitutional defect in the photographic lineup, Lin Nas in-court identification was not tainted and neither the pretrial nor the trial identifications of Yu were required to be excluded. "Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification." (People v. Yeoman, supra, 31 Cal.4th at p. 125.)
3. Sufficiency of the evidence.
Yu contends the evidence was insufficient to support his convictions for five of the burglaries. We disagree.
a. Standard of review.
When determining whether the evidence was sufficient to sustain a conviction, "our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[T]he test of whether evidence is sufficient to support a conviction is `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. [Citations.]" (People v. Holt (1997) 15 Cal.4th 619, 667.) "We draw all reasonable inferences in support of the judgment." (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that " `upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
b. Sufficiency of the evidence of burglaries charged in renumbered counts 9, 10, 12, and 14.
Yu urges that the evidence was insufficient to support his convictions for the Yim, Wong, Fung, and Yang burglaries because the only evidence tying him to the crimes was the stolen property found in the car when he was arrested. We disagree.
It is well settled that a jury may infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property, when coupled with slight corroboration by other inculpatory circumstances which tend to show guilt. (People v. Barker (2001) 91 Cal.App.4th 1166, 1173.) However, "possession of property taken in a burglary, unless augmented by other evidence corroborating the defendants involvement, is insufficient to support a burglary conviction [citations]." (People v. Mendoza (2000) 24 Cal.4th 130, 175; People v. Hernandez (1995) 34 Cal.App.4th 73, 80-81.) When a defendant is found in possession of the property "shortly after the burglary occurred, the corroborating evidence of the defendants acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions." (People v. Mendoza, supra, at p. 176; People v. Citrino (1956) 46 Cal.2d 284, 288.) Corroborating circumstances may include the attributes of possession, including time, place, or manner; the defendants false explanations, flight, or evasive behavior; his or her sale of the stolen property at a discount price or shortly after the burglaries; or even the nature of the items stolen. (People v. Citrino, supra, at p. 289; People v. McFarland (1962) 58 Cal.2d 748, 754; People v. Hernandez, supra, 34 Cal.App.4th at pp. 80-81; People v. Lang (1904) 142 Cal. 482, 484 [defendant pawned items the same day as the burglary]; People v. Russo (1959) 168 Cal.App.2d 747, 750 [stolen property sold in the middle of the night for a price that itself suggested " `hot merchandise"]; People v. Dickerson (1969) 273 Cal.App.2d 645, 648-649 [defendants possession of "worthless junk" from several burglaries may allow inference that defendant is the burglar]; People v. Robinson (1960) 184 Cal.App.2d 69, 77 [similarity in modus operandi by which two stores were burglarized was among the evidence corroborating defendants guilt]; see also CALCRIM 376.)
Here, Yu was found in possession of the victims property relatively soon after the burglaries, less than a month in the case of the Yim and Wong burglaries, and within approximately two weeks of the Fung and Yang burglaries. (See People v. Williamson (1959) 168 Cal.App.2d 735, 742 [defendant had possession of stolen property "shortly after the burglary" where he was found with stolen suit 20 days after the burglary in which it was taken]; People v. Midkiff (1968) 262 Cal.App.2d 734, 741 [where items were recovered from defendants possession "only ten days" after theft, only slight corroborating evidence was required].)
When apprehended Yu was in possession of property taken in all seven burglaries and robberies. All the crimes were committed in the same general geographic area, i.e., Monterey Park, Rowland Heights, and Hacienda Heights, during the same approximately three-week time period, July 4 through July 28. Yu was identified by the victims as the perpetrator in the Qui burglary committed on July 10 and the Zhu robbery committed on July 28. His palm print was found on the window through which the burglar gained access in the Song/Xia burglary committed during the night of July 23/July 24. Property taken in those three crimes was found in the same car as property taken in the Yim, Wong, Fung, and Yang burglaries, suggesting Yu was the culprit in all the crimes. Further, Zhu testified that the gun taken during the Fung burglary on July 14 looked like the gun used to rob him on July 28, allowing the inference that Yu stole and kept the firearm to commit additional crimes. Yu pawned property taken in the Wong burglary within two days of the crime. He also pawned two items of property taken in the Yang burglary. In short, the timing of the crimes, the limited geographic area in which they were committed, Yus conduct in pawning various items shortly after the burglaries, his possession of property from all the crimes in the same car when arrested, and his use of the gun stolen from one of the crimes in another crime, provided sufficient circumstantial corroborating evidence.
c. Sufficiency of the evidence of the Qui burglary.
In a related vein, Yu asserts that the evidence was insufficient to prove his conviction for burglary of the Qui home. Again, we disagree. Lin Nas DMV change of address card was found in Yus possession when he was arrested. "While mere possession of stolen property standing alone is not sufficient to connect a defendant with the commission of a burglary, it is nevertheless a circumstance strongly indicating guilt . . . ." (People v. Midkiff, supra, 262 Cal.App.2d at p. 741.) Lin Na tentatively identified Yu in the pretrial photographic lineup discussed ante, and positively identified him at trial and at the preliminary hearing. Lin Nas identification of Yu was sufficient corroborative evidence to support the verdict of guilt.
Yu contends, however that Lin Nas identification of him was too unreliable to amount to credible evidence. He urges that at the preliminary hearing Lin Na stated she could not see the burglar very well; initially told a responding officer she would be unable to identify the culprit; was only "60 percent" sure of her photographic identification; a significant amount of time elapsed between the burglary and the photographic and other identifications; the photographic lineup was unduly suggestive because Lin Na told the police the intruder was Hispanic, and Yu, but not the other subjects in the photographic lineup, appeared Hispanic; and the identification was cross-racial.
It is well settled that the testimony of a single witness, if believed by the finder of fact, is sufficient to establish that fact. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Hampton (1999) 73 Cal.App.4th 710, 722; People v. Vega (1995) 33 Cal.App.4th 706, 711.) Weaknesses in identification testimony of a single eyewitness are to be evaluated by the jury. (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372; People v. Keltie (1983) 148 Cal.App.3d 773, 781-782.) An identification need not be positive to retain evidentiary value. (See, e.g., People v Waller (1939) 14 Cal.2d 693, 700; People v. Midkiff, supra, 262 Cal.App.2d at p. 740; People v. Robarge (1952) 111 Cal.App.2d 87, 98; People v. Wiest (1962) 205 Cal.App.2d 43, 45-46; People v. Kittrelle (1951) 102 Cal.App.2d 149, 154 ["In order to sustain a conviction it is not necessary that the identification be positive or free from inconsistencies"].) "The question of identification of the perpetrator of a crime is one for determination by the trier of fact and unless the evidence of identity is so weak as to constitute no evidence at all this court cannot set aside the decision of the trial court. [Citations.]" (People v. Kittrelle, supra, at p. 154; People v. Alexander (1949) 92 Cal.App.2d 230, 234.) Thus, we may not reverse a judgment based on eyewitness identification unless the identification is "inherently incredible." (People v. Keltie, supra, 148 Cal.App.3d at pp. 781-782.)
Lin Nas identification of Yu was not inherently incredible. Lin Nas testimony demonstrated she had an adequate opportunity to view the intruder. As noted ante, both Lin Na and Officer Iglesias, who responded to the burglary call, testified that Lin Na described the intruders race, approximate age, clothing, height, and build shortly after the burglary. Lin Na described how she observed the burglar for five to six seconds, as he stood a few feet from her bed, before she screamed. The room was well-lit, and she got "a pretty good look" at his face. Officer Iglesias testified that Lin Na stated she would not be able to identify the perpetrator if she saw him again. Lin Na, however, testified that she told Iglesias that she would be able to recognize the perpetrator with 60 percent certainty. To the extent Iglesiass and Lin Nas testimony conflicted, the jury resolved the conflict against Yu. " `[T]he claimed weaknesses of identification testimony are a matter of argument to the trier of fact and cannot properly be directed to this court or effectively urged on appeal. [Citation.]" (People v. Echevarria (1992) 11 Cal.App.4th 444, 453.)
4. The trial court did not abuse its discretion by denying Yus Romero motion.
a. Additional facts.
In a bifurcated proceeding, the trial court found Yu had suffered two convictions for first degree burglary, serious or violent felonies (§§ 667, subd. (a)(1); 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Yu brought a Romero motion requesting that the trial court strike the prior conviction allegations in the interests of justice. In support of his motion, he presented the testimony of his mother, grandmother, brother, a college professor, and a family friend. They variously testified that Yu was devoted to his family, was polite, respectful, patient, and generous, and was never mean-spirited or violent. He helped his mother with her dog grooming business, assisted his grandmother with her medical and daily needs, and assisted neighbors when they needed help. His childhood had been less than optimal. His parents had been professional gamblers and were away from home frequently, sometimes for long periods. His father died when he was a teenager. His mother was addicted to alcohol and cocaine for years. Despite these circumstances, Yu had acted as a father to his younger brother, teaching him good morals and encouraging him in school and football, leading to the brothers being contacted by a major university regarding a possible football scholarship. Yu had coached Pop Warner football, and was "wonderful" with children. Not long before the instant crimes, he had spoken with a college professor about his desire to change his life, attend college, and get a good job. Yu admitted being addicted to methamphetamine during the period the crimes were committed, as well as at earlier periods in his life.
The trial court denied the Romero motion, concluding that Yu did not fall outside the spirit of the three strikes law. It observed that Yu had a significant criminal history. Twice Yu was placed on probation rather than incarcerated, but he reoffended. The court was troubled by the fact that Yu had been "given a break" when a court in a prior case had exercised its discretion to strike prior conviction allegations, but Yu reoffended nonetheless. Yus public conduct — as opposed to his conduct within his family — did not demonstrate that his prospects for the future were good. Moreover, the court expressed concern that although Yus past record was nonviolent, he had been caught carrying a firearm, and "people carry guns in cars for purposes."
b. Discussion.
Yu contends the trial court abused its discretion by failing to strike the prior conviction allegations. He complains that the sentence imposed was unjust and irrational, and that the court failed to carefully consider "aspects of the current crime," Yus prior record, and his personal circumstances. He points out that his prior crimes were nonviolent; he was only 27 years old at the time of sentencing; his crimes were the result of his narcotics addiction; and even if the court had stricken one prior strike allegation, he would have received a lengthy sentence.
In the furtherance of justice, a trial court may strike a prior conviction allegation. (§ 1385, subd. (a); People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) A trial courts refusal to strike a prior conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Under that standard, the party seeking reversal must "`clearly show that the sentencing decision was irrational or arbitrary. [Citation.] " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (People v. Carmony, supra, at p. 378.) Only extraordinary circumstances justify a finding that a career criminal is outside the three strikes law. (Ibid.) Therefore, "the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Ibid.)
When considering whether to strike prior convictions, the relevant factors a court must consider are "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) The three strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony, supra, 33 Cal.4th at p. 378.) We presume the trial court considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
The trial court was clearly aware of its discretion to strike a prior conviction allegation. Our review of the record demonstrates that the trial court listened to and seriously weighed defense counsels arguments, including the contentions that the conduct was a product of Yus upbringing, that Yus prior crimes had been nonviolent, and that Yus propensity to commit thefts was driven by his methamphetamine addiction.
Yus criminal history was lengthy and serious. Between the ages of 15 and 17 years, Yu had sustained juvenile petitions for burglary, grand theft, and contempt of court, as well as a probation violation. As an adult, between 1998 and commission of the instant crimes, Yu was convicted of numerous felonies including multiple convictions for burglary, receiving stolen property, forgery, and possession of a controlled substance, as well as for a variety of misdemeanors, including making false representations to a pawnbroker and driving with a suspended license. Yu was returned to custody on parole violations at least twice, and was on parole at the time he committed the instant crimes. In the instant case, Yu was convicted of 14 felonies arising from seven separate burglaries or robberies.
Contrary to Yus argument, his convictions were not all nonviolent; in the Zhu robbery, he pointed a firearm at the victims head and cocked the hammer. That his crimes may have been tied to his drug addiction did not compel grant of the motion. "[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Yu was not an impressionable or impulsive juvenile when he committed the crimes; he was 27 years old at the time of sentencing. Even if Yus evidence that he was devoted to his family, generous, and helpful is credited, this does little to demonstrate that he falls outside the spirit of the three strikes law. Yu suffered numerous convictions of increasing seriousness. Yu was given the benefit of the doubt in prior cases when he was given probation and when a prior court dismissed strike priors in the interests of justice. Nonetheless, Yu still reoffended. His "conduct as a whole was a strong indication of unwillingness or inability to comply with the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendants prospects for the future look no better than the past, in light of defendants record of prior offense and reoffense . . . . There is no indication from the record here that the court failed to consider the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. [Citation.]" (People v. Philpot (2004) 122 Cal.App.4th 893, 906-907.) In sum, this is not the sort of "extraordinary" case in which the defendant falls outside the spirit of the three strikes scheme. (See, e.g., People v. Carmony, supra, 33 Cal.4th at p. 378; People v. Philpot, supra, at p. 907.) The trial courts ruling was neither irrational nor arbitrary, and did not constitute an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur:
KLEIN, P. J.
KITCHING, J.