IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
August 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CARLOS CHAIREZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF113961A)
The opinion of the court was delivered by: Hoch, J.
P. v. Chairez
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Carlos Chairez of second degree robbery (Pen. Code, § 211)*fn1 with a firearm enhancement (§ 12022.53, subd. (b)), and carrying a concealed weapon, a misdemeanor (§ 12025, subd. (a)). The trial court sentenced defendant to 13 years in prison.
On appeal, defendant contends insufficient evidence supports his robbery conviction. We affirm.
Around 5:00 p.m. on January 26, 2010, Francisco Hermenio was at the intersection of Golden Gate Street and Main Street in Stockton, selling corn on the cob and snow cones from a cart attached to his bicycle. Hermenio felt something cold on his neck, below his right ear. Defendant was standing behind him and told Hermenio in Spanish,*fn2 "Give me everything that you have." Hermenio was afraid, so he turned and gave his wallet to defendant. Defendant went through the wallet and returned it to Hermenio, telling him, "Here, take it. You can have your papers." Defendant next demanded Hermenio's bicycle, but Hermenio refused and said defendant could kill him. Defendant then went away.
According to Hermenio, defendant had long hair, was neither tall nor short, and wore a white T-shirt and blue pants. Hermenio had $100 cash in his wallet, which was gone after defendant returned the wallet.
Hermenio kept working after the robbery. Police contacted him the following day. Hermenio recognized defendant in photographs they showed him. He also identified defendant as the robber at the preliminary hearing. Hermenio had some hesitation identifying defendant at the preliminary hearing because he was thinner than when he committed the robbery, but Hermenio realized that people can lose weight in jail.
Eufemio Gonzalez was driving down Main Street on January 26, 2010, at around 5:00 p.m. when he saw a person holding a gun on a vendor on Golden Gate Street. The chrome gun was about half an inch from the vendor's chin. The man holding the gun wore blue pants and a black shirt.
Gonzalez drove to the next street and called 911. Police called Gonzalez about 10 minutes later and told him they had arrested someone. The police took Gonzalez to a showup on Main Street, where he identified defendant as the robber. At trial, Gonzalez again identified defendant as the robber.
Howard Woolems was driving home from work on the day of the incident when he witnessed an armed robbery on Golden Gate Street. A long-haired Hispanic man with a chrome-colored gun in his right hand pressed the gun into another Hispanic man's face. Woolems saw the victim reaching into his pocket as if he was trying to find money. He saw a partial profile of the perpetrator. At trial, Woolems identified defendant as the robber.
Woolems drove a block and pulled over to call 911. He started driving again and saw police officers with defendant, who was sitting on the curb. Woolens told the officers he looked like the man who committed the robbery. He identified defendant to the police less than five minutes after the robbery. He believed defendant was wearing blue jeans.
On January 26, 2010, at around 5:00 p.m. Stockton Police Officer Travis Digiulio responded to a robbery in progress at Golden Gate Street and Main Street. The perpetrator was described as a White or Hispanic male wearing a dark shirt and dark pants with long hair, last seen walking west on Main Street. Officer Digiulio drove to the intersection. When he did not see anything at the intersection, he drove west on Main Street, where he saw a person matching the perpetrator's description.
Officer Digiulio left his patrol car, drew his gun, and ordered the man to the ground. The man, defendant, turned around and walked backwards while facing Officer Digiulio. Holding his arms out at a 45-degree angle, defendant said, "What did I do? What did I do?" As Officer Digiulio repeated his commands, defendant continued to walk backwards, and dropped his hands towards his right pocket. Defendant responded to Officer Digiulio's repeated commands with obscenities.
Two officers got out of another patrol car and approached defendant from the rear. Defendant turned, grabbed his right pocket, and tried to run westbound. Officer Digiulio and the other officers pulled defendant to the ground. A search of defendant revealed a loaded, chrome semiautomatic gun in his pocket. Defendant was wearing a dark black shirt with a long sleeve white shirt underneath. Officers later found $14 on defendant.
Defendant testified that he drank two 40-ounce beers for breakfast on the morning of the incident. He was with his fianceee and her friend at a laundromat that day. On his way to get pizza for lunch, defendant stopped at a taco truck and saw two men arguing, one of whom wore a Chicago Bulls jersey. The men separated and one of them tossed an object towards a fence near a church.
Defendant picked up the object, a gun wrapped in a white rag. Drunk from the beer and not knowing what to do with the gun, defendant placed it in his pocket to keep until he sobered up. Defendant then started to return to the laundromat, where the officers tried to stop him.
Defendant contends there is insufficient identification evidence to support his robbery conviction. Specifically, he argues that the three eyewitnesses who identified him as the robber were unreliable and the identification procedures were inherently suggestive.*fn3 We disagree.
When presented with a challenge to the sufficiency of the evidence in support of a criminal conviction, "we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole." (People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)
"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. [Citations.]" (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) In deciding whether substantial evidence supports the trial court's findings, we do not evaluate the credibility of witnesses; that is within the provenance of the trier of fact. (People v. Breverman (1998) 19 Cal.4th 142, 162.) "[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
The identification testimony of the three witnesses was found to be credible by the jury. Here, the victim's testimony alone suffices to sustain a conviction. (People v. Young, supra, 34 Cal.4th at p. 1181.) The corroborating testimony of the two additional eyewitnesses who identified defendant constituted redundant evidence that supports defendant's conviction.
Contrary to defendant's argument, the curbside showup during which two witnesses identified defendant was not inherently suggestive. A single-person showup identification is not necessarily unfair or unduly suggestive. (People v. Clark (1992) 3 Cal.4th 41, 136.) In this case, the showup was close in time to the robbery, and defendant's appearance and clothing matched the descriptions provided by the two witnesses. While defendant complains that the eyewitnesses' descriptions of the defendant were "fairly generic," the descriptions nonetheless matched the defendant's appearance and clothing. Rather than being the product of an inherently untrustworthy identification, the showup identifications in this case constitute credible evidence of the robber's identity.
Defendant's assertion that sudden violent events involving weapons "are not conducive to reliable eyewitness testimony" is not supported by the evidence. Here, defendant was identified as the robber by the victim and two eyewitnesses. The jury found the testimony to be credible, and implicitly rejected defendant's testimony. We will not disturb the jury's credibility findings.
In sum, substantial evidence supports defendant's robbery conviction.
The judgment is affirmed.
We concur: RAYE , P. J. BUTZ , J.