Opinion
F078485
04-08-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID SOTO ZAMORA, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16902787)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Meehan, J.
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Defendant David Soto Zamora was charged with second degree burglary (Pen. Code, §§ 459, 460, subd. (b) [count 1]), grand theft auto (§ 487, subd. (d)(1) [count 2]), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a) [count 3]), and receiving stolen property exceeding $950 in value (§ 496, subd. (a) [count 4]). The first amended information further alleged he was previously convicted of assault with a deadly weapon, a qualifying strike offense (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and, with respect to counts 2 and 3, was convicted of felony theft involving a vehicle on three prior occasions (§ 666.5). Defendant subsequently admitted the truth of the special allegations.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
Following trial, the jury found defendant guilty as charged as to counts 1, 2, and 4. Count 3 was discharged. Defendant received an aggregate prison term of five years four months: four years on count 2, a consecutive eight months on count 1, and a consecutive eight months on count 4. Pursuant to section 1385, the trial court dismissed the prior strike allegation "for sentencing purposes only."
On appeal, defendant contends his convictions on counts 1 and 2 must be reversed because the evidence did not sufficiently establish he was a perpetrator. We disagree.
STATEMENT OF FACTS
I. Bryan M.
Bryan has been employed by Mid Valley Disposal (Mid Valley), a garbage company, since July 2009. He became a route supervisor in 2015, in charge of "getting the drivers out on route" and "making sure they have everything they need to conduct their duties for the day."
On April 4, 2016, at approximately 4:00 a.m., Bryan arrived at Mid Valley's facility. As he was preparing the drivers' schedules, he was informed about a missing 2013 Dodge Ram pickup truck by Joe M., a Mid Valley mechanic. The vehicle, which was "practically still a new truck," was valued at approximately $23,500. Because the Ram was used by the mechanics to "assist on road calls," it held various tools and equipment. Items were also taken from a warehouse. The following were reported missing: (1) "Bosch scanner, green, ... [worth] $10,000"; (2) "Miscellaneous truck parts, [worth] [$]2,000"; (3) "Two tire impact guns, ... silver, [worth] [$]1,600"; (4) "A tire dismount tool, Cobra ... brand, ... blue, ... [worth] about [$]550"; (5) "Tire mount lube, two 5-gallon jugs, [worth] [$]50 ... each"; (6) "Tire inflat[o]r [canon], ... Cheeta[h] ... brand, ... yellow, [worth] [$]500"; (7) "Floor jack, OTC, red, [worth] [$]280"; and (8) "Bottle Jack, 20-ton air jack, red, [worth] [$]580."
Bryan reviewed surveillance footage recorded between April 3rd and April 4th, which showed two masked men with the Ram. One of these men was wearing a blue, long sleeve shirt, black pants, and a pair of black tennis shoes with white trim. Bryan presented the footage to Joe and Jose C., Mid Valley's shop foreman. Later, Bryan told Officer E.J. LaBerteaux, formerly of the Kerman Police Department, that Joe and Jose identified the man in the blue shirt as defendant, a former Mid Valley mechanic who was terminated in May 2015.
II. Officer LaBerteaux
On April 12, 2016, LaBerteaux met Bryan at Mid Valley's facility and learned Joe and Jose identified one of the culprits captured on camera as defendant. LaBerteaux "called them each individually and had them watch the video separately from each other." Joe "immediately" recognized the man in the blue shirt as defendant, emphasizing the man "had [defendant's] particular walk and movements." Likewise, Jose noted the man in the blue shirt "appeared bowlegged" and "had a very particular walk." Having worked alongside defendant "for approximately a year," Jose "was very positive" this man was defendant.
Sometime thereafter, LaBerteaux showed Mid Valley's surveillance footage to Sandeep K. and Uwe K., co-owners of MDF Tires.
On April 27, 2016, LaBerteaux and other law enforcement officers conducted a stakeout at defendant's residence. At some point, defendant exited the dwelling and entered a black Chevy Avalanche pickup truck. LaBerteaux watched defendant's gait and concluded it was consistent with what he had seen in the surveillance footage. The officers followed the Avalanche to a hotel, where they detained defendant. LaBerteaux observed defendant was wearing a pair of black tennis shoes with white trim, akin to what he had seen in the footage. The officers searched the Avalanche and retrieved the missing Cheetah tire inflator cannon. Back at defendant's residence, the officers searched the garage and retrieved the missing Bosch scanner and Cobra tire dismount tool.
III. Joe M.
Joe watched the surveillance footage with LaBerteaux in April 2016. He initially testified he did not identify anyone in that footage. Later, however, he acknowledged he had said the man in the blue shirt "might have been" and "possibly could have been" defendant because the man's gait "sort of looked like the way [defendant] walked."
IV. Jose C.
Jose watched the surveillance footage with LaBerteaux in April 2016. He testified he did not recognize anyone in that footage.
V. Sandeep K.
Sandeep testified defendant used to work for MDF Tires for "[m]aybe four, five, six months." In April 2016, he watched the surveillance footage with LaBerteaux. Sandeep believed "the mannerisms" of the man in the blue shirt, i.e., "the way he walks and the way he runs and everything," "seem[ed] to be the same" as those of defendant, but he "can't say for sure." Later, however, he acknowledged he had told LaBerteaux he was certain the man was defendant.
VI. Uwe K.
Uwe testified defendant worked at MDF Tires "[f]or about six months" in 2015. During that time, the two "worked every day together ... [f]rom Monday to Friday." In April 2016, Uwe watched the surveillance footage with LaBerteaux. He identified the man in the blue shirt as defendant, explaining the man and defendant shared "a very distinctive walk" "like a skip." Aside from defendant, Uwe "[hasn't] seen really anyone else walk that way." He also pointed out the "type of clothing" worn by the man in the video was "similar" to the clothing worn by defendant on the job.
DISCUSSION
I. Standard of review
"To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." (People v. Tripp (2007) 151 Cal.App.4th 951, 955 (Tripp).) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether ' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' " (Tripp, supra, at p. 955, italics omitted.) "This standard of review . . . applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (Ibid.)
"Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it." (People v. Redmond, supra, 71 Cal.2d at p. 755.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the 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.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' " (People v. Lee (2011) 51 Cal.4th 620, 632.)
II. Analysis
Defendant claims the evidence did not "remove unavoidable doubt that he was one of the two men in the surveillance video who burglarized [Mid Valley], and took the company truck."
" 'Apropos the question of identity, to entitle a reviewing court to set aside a jury's finding of guilty the evidence of identity must be so weak as to constitute practically no evidence at all.' " (People v. Mohamed (2011) 201 Cal.App.4th 515, 521 (Mohamed).) " 'The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, the uncertainty of recollection, and the qualification of identity and lack of positiveness in testimony are matters which go to the weight of the evidence and the credibility of the witnesses, and are for the observation and consideration, and directly solely to the attention of the jury in the first instance ....' " (Id. at p. 522.) " '[I]t is not essential that a witness be free from doubt as to one's identity. He may testify that in his belief, opinion or judgment the accused is the person who perpetrated the crime, and the want of positiveness goes only to the weight of the testimony.' " (Ibid.)
We conclude substantial evidence demonstrated defendant was a perpetrator. The record—viewed in the light most favorable to the prosecution—shows, inter alia, four different individuals watched Mid Valley's surveillance footage with LaBerteaux and identified the masked man in the blue shirt as defendant primarily based on gait. (See Mohamed, supra, 201 Cal.App.4th at p. 522 [" '[I]t is not necessary that any of the witnesses called to identify the accused should have seen his face. [Citation.] Identification based on other peculiarities may be reasonably sure. Consequently, the identity of a defendant may be established by proof of any peculiarities of size, appearance, similarity of voice, features or clothing.' "].)
Uwe testified he used to work alongside defendant "every day" "[f]rom Monday to Friday" "[f]or about six months," was aware defendant had "a very distinctive walk," and believed the man in the blue shirt exhibited the same unique movement. He also testified defendant would dress in the same type of clothing worn by the man in the video. (See People v. Reed (2018) 4 Cal.5th 989, 1006 ["Even identification of defendant by a single eyewitness may be sufficient to establish, beyond a reasonable doubt, defendant's identity as perpetrator of the crime charged."]; People v. Elwood (1988) 199 Cal.App.3d 1365, 1372 ["A single witness's uncorroborated testimony, unless physically impossible or inherently improbable, is sufficient to sustain a conviction."].)
The other three witnesses who made out-of-court identifications were less certain on the stand than Uwe. Nevertheless, "an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification ...." (People v. Cuevas (1995) 12 Cal.4th 252, 265.) Sandeep testified he had told LaBerteaux he was positive the man in the blue shirt was defendant based on shared "mannerisms," though he could not "say for sure" in court. Joe testified he did not identify defendant at the time he viewed the footage but later admitted he had told LaBerteaux the man in the blue shirt "might have been" and "possibly could have been" defendant because the two shared the same gait. LaBerteaux recalled Joe had "immediately" identified the man in the blue shirt as defendant. Jose testified he did not recognize anyone in the footage. According to LaBerteaux, however, Jose had been "very positive" the man in the blue shirt was defendant because the two were both "bowlegged" and "had a very particular walk."
LaBerteaux testified he observed defendant on the day of the arrest and determined his gait and footwear matched those seen in the video. Finally, searches by law enforcement revealed defendant had been in possession of some of the items taken at the same time as the Ram from Mid Valley's facility. A rational trier of fact could reasonably deduce defendant's identity from the totality of the evidence.
DISPOSITION
The judgment is affirmed.