(Super. Ct. No. 07F04853)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Two masked and hooded robbers stole money, credit cards, and cell phones from employees and customers at Taco Bell and NT Hair and Nails. Similarly disguised bandits had burgled and robbed another salon about two weeks earlier. Most of the witnesses to all three events forthrightly admitted they could not identify the perpetrators, and the identifications by those who tried were decimated during cross-examination. Needless to say, identity was the crux of the trial.
Defendant Jeremy Thomas asserts insufficiency of the evidence and instructional error. He also contends he was improperly convicted of receiving the same property he stole. (Pen. Code, § 496, subd. (a).) As to his challenge to the sufficiency of the evidence, he parses the evidence too finely. Because, as defendant recognizes, we must review the record in the light most favorable to the judgment and give deference to the factual and credibility findings made by the jury, we reject this challenge. We agree with defendant, however, that his convictions of receiving stolen property must be reversed.
On May 15, 2007, two young African-American males, one of them armed with a gun, committed a series of crimes at NT Hair and Nails around 5:30 or 6:00 p.m. and shortly thereafter moved on to Taco Bell, where they again threatened the employees and customers and stole money from the cash registers. No one disputes that the establishments were burgled and the occupants robbed, but the essential issue on appeal is whether there is substantial evidence to sustain the jury's finding that defendant Jeremy Thomas was one of the perpetrators.
The parties stipulated that on December 8, 2008, an African-American teenager, Elijah Bean, pled no contest to one count of robbery at Anna's Nails on May 3, 2007; one count of robbery at Taco Bell on May 15, 2007; and one count of receiving stolen property taken from NT Hair and Nails on May 15, 2007. They all stipulated that no prints taken from any of the establishments or the stolen property matched those of defendant.
None of the employees could identify the robbers. The owner of NT Hair and Nails explained that a shorter man with a hood tied tightly around his head, large sunglasses, and short pants came into the salon with a taller man, who was wearing a white mask. They ransacked the salon, demanded money, and put their take in a large Macy's bag.
The Taco Bell employees also testified that one robber was taller than the other and the shorter man had a gun. One employee stated that the shorter man wore a jacket zipped all the way up and the other wore a white mask with a ghost face. The man with the gun flipped the drawer out of the front cash register onto the floor. The employees put the cash into a Taco Bell bag. The other took money from the register located by the drive-through window. They could not identify either one.
The patrons and a man visiting a business located next to the salon, however, attempted to identify the perpetrators. At trial, they were subjected to searing cross-examination, and the weaknesses in their identifications were thoroughly exposed to the jury.
Satender Bains was in the vacant business adjacent to the salon on the evening of May 15, 2007, when he observed two African-American teenage males walking by. One of the males was about five feet six inches tall, but Bains could not remember how tall the other one was. One of them was putting on a white mask with black print on it. Several minutes later he saw them run out of the salon and he pursued them for several blocks until they disappeared into a neighborhood. When asked to view some suspects in the field later that day, he was unable to identify anyone. Two days later, he remained unable to positively identify anyone in a photo lineup. After eliminating two of the three photos, he did say, "At most No. 2." He told the police officer he was 80 percent sure of his identification. During a live lineup, he misidentified an innocent person.
Unlike the owner of the salon who believed the taller intruder carried the gun, patron Patricia Ferrera-Swett testified that the shorter male, wearing a black hoodie and sunglasses, had the gun. She reported that the owner gave him money from her apron. The taller male, who was at least six feet tall, wore a gray hoodie with a mask that covered his whole face and head, although there were cutouts for his eyes and mouth. She was insistent that the gun had a specific nick she could recognize. So although a photo she was shown looked something like the gun used ...