APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey Lawes Falcone, Judge. Modified and affirmed. (Los Angeles County Super. Ct. No. VA098031).
The opinion of the court was delivered by: Neill, J.*fn4
CERTIFIED FOR PUBLICATION
Appellant Alejandro Roa was convicted by jury of carjacking (Pen. Code, § 215; undesignated section references are to that code), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), with a finding that he personally used a firearm in the carjacking (§ 12022.53, subd. (b)). Sentenced to a term of 15 years, appellant contends that the evidence he used a firearm during the offense was insufficient. Respondent opposes this contention and also asserts that the abstract of judgment should be corrected in various respects. We conclude that substantial evidence supports the firearm enhancement. In so doing, we consider factors concerning out-of-court identifications that were articulated in People v. Cuevas (1995) 12 Cal.4th 252 (Cuevas). We affirm the judgment, after modifying it in accordance with one of respondent‟s requests.
Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that on December 22, 2005, Enrique and Maria Avina (Avina and Mrs. Avina) resided in Hawaiian Gardens, and owned a Chevrolet Astrovan (van).*fn1 At about 4:30 a.m., before Avina left for work, Mrs. Avina heard a noise outside. Looking out, she saw two men apparently trying to get into her son‟s car. She and Avina went out, and saw the two men run to where the van was parked, across the street. One of them got inside, while the other ran to the back, en route to the passenger side. Avina blocked this suspect, who pointed a handgun at him. The van drove away, and the suspect outside it ran in the opposite direction. Avina found the van parked on a nearby street a few hours later.
There was no dispute that appellant was one of the carjackers. Both Avinas identified him, at trial and before. They had previously seen him in their neighborhood several times and knew his family, who had come from the same town in Mexico as the Avinas, and lived nearby. However, the Avinas‟ trial testimony diverged from their pretrial accounts, regarding whether appellant had wielded the gun outside the van, or instead had been the driver.
Immediately after the carjacking, the Avinas were interviewed by Los Angeles Deputy Sheriff Joseph Benjamin, who arrived at their home in response to a 911 call. The deputy testified that he spoke with the Avinas using their broken English and the little Spanish he knew. Avina told him that appellant had stolen their van, accompanied by his brother. Avina stated appellant had pointed a gun at him, causing him to back off, and then had run when the van drove away. The Avinas said that the pistol had resembled Deputy Benjamin‟s, silver in color. They described appellant as five feet, eight to ten inches tall with a mustache, and stated both men had worn black sweatshirts and tan-brown shorts. They also told the deputy where appellant‟s family lived.
Two weeks later, on January 3, 2006, Sheriff‟s Detective Brandt House interviewed the Avinas, separately, at the Lakewood sheriff‟s station. He testified they spoke English well enough that he did not need to use a Spanish-speaking deputy he had called to interpret. Avina described being alerted to the car tampering by his wife and going outside to respond. When he did, he saw appellant, with a large-caliber semi-automatic weapon -- a big silver gun. Detective House had Avina describe the gun and compare it with his own.
Detective House showed Avina a six-pack display containing appellant‟s photo. Avina identified appellant, and then spontaneously wrote on the exhibit in Spanish, "He is the one that had the gun." Avina told the detective appellant had drawn the gun and told him to "Shut up, motherf---er." Avina also said the second suspect had been a relative of appellant‟s, possibly his brother. Detective House believed appellant had several brothers; he prepared a six-pack with the only photograph of one that was available, but Avina could not make an identification from it.
In Detective House‟s interview with Mrs. Avina, she stated that appellant had pointed a large gun at her husband. As Mrs. Avina admitted during her trial testimony, she also identified appellant from a six-pack. Like her husband, Mrs. Avina expressed no confusion about appellant being the one outside the van, who had wielded the gun.
At trial, Avina stated he could not speak any English. Notwithstanding his pretrial statements, he testified that appellant had driven the van, and his accomplice had been the one who pointed something silver at Avina. Avina did not know "if it was a gun or a knife." He claimed not to have told Deputy Benjamin that there had been a gun or other weapon in the accomplice‟s hand when he pointed his arm at Avina.
Avina acknowledged identifying appellant from the six-pack, and writing on it, "He is the one that had the gun." He explained that he had been mistaken, and very nervous about his immigration status when speaking with Detective House. Avina also denied describing the carjackers to Deputy Benjamin.
Mrs. Avina also testified that she spoke no English, and denied having done so with Deputy Benjamin. She stated appellant had driven the van, while his accomplice had extended his arm at Avina. She denied seeing a gun, or so telling the deputy or Detective House.
The Avinas also testified to a possible explanation for their changed testimony. Avina stated that before trial Mrs. Avina had told him that someone had telephoned and told her that they could have immigration problems, and should not cooperate with the police. Avina denied this caller had been appellant‟s father, but he testified that the father had called him, and told him he wanted him to drop the charges. Mrs. Avina testified that appellant‟s parents had driven her to court for an initial appearance. Appellant‟s father told ...