P. v. Casas
Filed 2/13/13
P. v. Casas CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE GONZALES CASAS,
Defendant and Appellant.
D060766
(Super. Ct. No. JCF23116)
APPEAL from
a judgment of the Superior Court of
County, Poli Flores, Jr., Judge.
Affirmed.
INTRODUCTION
A jury
found Jose Gonzales Casas guilty of attempted
first degree murder (Pen. Code,
187, subd. (a), 664), assault with a
deadly weapon (§ 245, subd. (a)(1)), and first degree burglary (§
459). The jury also found true an
allegation Casas committed the attempted murder willfully, deliberately and
with premeditation (§§ 664, subd. (a), 1192.7, subd. (c)). The trial court sentenced him to life with
the possibility of parole for the attempted first degree murder conviction and
stayed the sentences for the other two convictions under section 654.
Casas
appeals, contending we must reverse his convictions because there is
insufficient evidence to support them.
We conclude there is no merit to this contention and affirm the
judgment.
BACKGROUND
Prosecution
Evidence
In the
evening on February 8, 2009, Margaret Stearman was at her home on the corner of
Pater Street and Sequoia Avenue in Brawley, California. Around 8:30 p.m., she was working on her
computer in her bedroom with her back to the bedroom door when she heard the
front door open and close. Before she
could see who came in, she felt a hard strike on and a sharp pain in the right
side of her neck. She turned around and saw a young, Hispanic
male stranger walk out of her room. He
wore dark pants and was about six feet tall, with short hair and a medium build. Stearman's children heard Stearman scream,
but did not see the man or the attack.
Stearman suffered a severe stab wound to her neck, near her carotid
artery and jugular vein.
The same
evening, Nellie Cornejo was outside her mother's house on Sequoia Avenue when
she heard a woman scream loudly. She saw
a man sprinting down the street. The man
had short black hair and was wearing "dark clothing," either a blue
or black sweatshirt and black pants. He
looked at her and then threw something that hit a nearby wooden fence. He continued sprinting down Sequoia Avenue
and turned left onto Jones Street.
Police officers later found a black-handled kitchen knife by the fence. The knife had Stearman's DNA on it.
Around the
same time Cornejo saw the man running, Cornejo's younger sister, Linda Nunez,
was walking on Sequoia Avenue with Casas's sister, Elizabeth Casas
(Elizabeth). Nunez and Elizabeth had
just been at Elizabeth's house on Jones Street and were walking to Nunez's
house. Nunez saw a man running toward
them. According to Nunez, Elizabeth
asked, "Is that my brother?"
Nunez replied, "I don't know."
Nunez testified the area lighting was dim and she did not look at the
man's face. She only saw his
clothes. He wore dark-colored clothing,
including a pullover sweatshirt.
The
prosecutor asked Nunez whether it was possible she told a police officer she
had seen the man's face and that he was a Hispanic male. She testified, "Maybe then I did. Now, two and a half years later, I don't
remember exactly what I said to the officer." She also testified she did not remember
whether she told the officer the man had a goatee and wore a black T-shirt and
white shoes.
After Nunez
refreshed her recollection with a police report, she testified she had seen the
man's face "[a] little bit."
She identified Casas as the man both at an in-field lineup on the
evening of the stabbing and at trial.
Earlier the
afternoon of the stabbing, between 3:00 p.m. and 5:00 p.m., Nunez walked over
to Elizabeth's house. While there, Nunez
saw Casas walk down the stairs and enter the kitchen. She described him as being between five feet,
five inches and six feet tall. His hair
was "real short" and he wore "dark colors," including a
dark sweatshirt with a hood and brown pants. There was a door in the kitchen leading to the
backyard. Nunez could not see into the
kitchen and could not remember whether Casas came back out of the kitchen.
After
seeing Casas enter the kitchen, Nunez stayed at Elizabeth's house "a
little while longer" until her parents called her to return home. Elizabeth walked Nunez home. They walked out of Elizabeth's garage onto
Jones Street, then down Eucalyptus and turned onto Sequoia Avenue. Nunez could not remember the time she left,
but testified it was "pretty late" and she had seen Casas minutes
earlier.
Elizabeth
testified she and Nunez left the house at 8:30 p.m. She saw Casas sitting outside on the front
porch swing when they left. He was still
wearing his church clothes and black dress shoes. She did not see anyone running until about a
minute after turning onto Sequoia Avenue, which was about four to five minutes
after leaving her house. The man who ran
by her had a medium build and did not say anything to her. According to her, Casas was overweight, could
not run very well and quickly became out of breath.
Casas's
mother, Angelica Chacon, testified Casas called her around 8:15 p.m. on the
night of the stabbing from the Victory Outreach recovery home, where he had
been living for about a month. She left
two or three minutes later to pick him up from the home, which was about eight
minutes away. When she picked him up, he
was wearing "church clothes," including black slacks, a navy blue
sweater vest, a light colored shirt, a tie, and black shoes. He had all of his other clothes with
him.
The Victory
Outreach director said Casas was wearing a black sweatshirt and gray sweatpants
when he left. The director also said
Casas had short hair and a little mustache.
Chacon
returned home with Casas around 8:20 p.m.
While Casas took his belongings to his room, Chacon got some water from
the kitchen, then went upstairs to her room and did some laundry. Sometime while she was doing laundry, Chacon
heard the front door slam. About a
minute later, she heard it slam again.
She assumed the first slam was Elizabeth and Nunez leaving the house.
Also
sometime while Chacon was doing laundry, Casas went into Chacon's room and
asked for some aspirin. He then went
downstairs. When Chacon checked on him later,
he was out of breath. She told a police
officer she asked Casas why he was out of breath and Casas told her it was
because he went up the stairs.
Brawley
police officers received a call regarding the stabbing at 8:38 p.m. Around 9:00 p.m., based on Stearman's
description of her attacker, Officer Perry Monita went to Casas's house to
determine whether he was involved in the stabbing. Casas was wearing a white T-shirt, gray
sweatpants, and running shoes. Monita
described him as a Hispanic male, in his early 20's, between five feet, 10 or
11 inches tall, weighing approximately 180 pounds, with a shaved head, thin
mustache, and a goatee.
When Monita
told Casas he was investigating an attack on a woman, Casas slowly looked down
at his right hand and turned it palm side up, which Monita thought was
strange. Monita did not observe any
blood, scratches, or other injuries on Casas's hands.
Monita left
Casas's home to help the other investigating officers. He later went back to Casas's home and Casas
agreed to participate in an in-field lineup.
At that point, Casas wore a black or navy blue sweatshirt and gray
sweatpants.
Chacon told
Monita she thought Casas stayed home that evening and had not left. However, she also said she had been upstairs
in her bedroom and could not be certain.
She told another officer she did not know whether he had left or not.
A police
officer found three knives in Chacon's kitchen similar to the knife the
assailant threw by the fence. Chacon
said she believed the knife found by the fence was hers.
Defense Evidence
Nunez
testified she told officers she identified Casas based on a text message she
received from Elizabeth informing her of the matching knives and stating Casas
was the man they saw running. However,
she also testified the text message did not influence her identification of
Casas. She was sure Casas was the man
she saw running before she received the message and was simply "more
sure" after receiving the message.
She testified she never identified Casas by name even though she knew
him because he was Elizabeth's brother and she and Elizabeth were close
friends.
DISCUSSION
"When
the sufficiency of the evidence to support a conviction is challenged on
appeal, we review the entire record in the light most favorable to the judgment
to determine whether it contains evidence that is reasonable, credible, and of
solid value from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citation.] '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
or falsity of the facts upon which a determination depends.' [Citation.]
Unless it describes facts or events that are physically impossible or
inherently improbable, the testimony of a single witness is sufficient to
support a conviction." (
585.)
Casas
contends we must reverse his convictions for insufficient evidence because they
rest on Nunez's testimony identifying him as the man who ran by her, which he
contends is inherently improbable. He
supports his argument by pointing out discrepancies between Nunez's
identification of him as the suspect and other statements she made, including
that she did not know the suspect and did not see enough of him to identify
him. In addition, according to
Elizabeth, Nunez told Elizabeth the man running was not Casas. Nunez also told police she only identified
Casas as the suspect after receiving a text message from Elizabeth informing
her he was the suspect.
While we
agree there were discrepancies between Nunez's identification of Casas and some
of her other statements, these discrepancies do not permit us to reject her
testimony. "The 'inherently
improbable' standard for rejecting testimony on appeal is not merely an
enhanced version of implausibility . . . . 'Highly implausible' is still an argument
reserved for the trier of fact.
Inherently improbable, by contrast, means that the challenged evidence
is 'unbelievable per se' (italics omitted), such that 'the things testified to
would not seem possible.' " (
721, 725, 728-729.)
When Nunez
was confronted with the discrepancies at trial, she explained she was reluctant
to initially identify Casas because of her long-standing, close relationship
with Elizabeth. She also explained
Elizabeth's text message did not prompt her identification of Casas, but rather
validated it. The jury apparently
credited these explanations and neither is impossible or unbelievable per se.
Casas also
contends Nunez 's testimony is inherently improbable because she testified
Casas was at Chacon's home minutes before Nunez left with Elizabeth and there
was not enough time for him to run to Stearman's house, commit the crimes, and
run back up Sequoia Avenue to encounter Nunez and Elizabeth. He bolsters this contention by pointing to
evidence in his favor, including his mother's testimony that he had not left
his home, his sister's testimony that he was overweight and had trouble
running, his mother's testimony that he was out of breath from walking up the
stairs, and his mother's and Cornejo's testimony indicating the brand of knife
the assailant used was not uncommon and was sold at mass market retailers.
We are not
persuaded by these arguments because there was no testimony about how long it
would take someone to get from Chacon's home to Stearman's home by the various
available routes. Moreover, the only
non-police witness who provided a precise time for any of the events was
Elizabeth and the jury implicitly found her testimony incredible on this point
and many other points, including her version of her interactions with Nunez and
her assessment of Casas's physical capacity.
Further, we cannot consider the evidence favorable to Casas in our
analysis because "[t]he determination of inherent improbability must be made
without resort to inference or deduction, and thus cannot be established by
comparing the challenged testimony to other evidence in the case." (People
v. Ennis, supra, 190 Cal.App.4th
at pp. 725, 728-729.) Accordingly, we
conclude Casas has not established Nunez's identification testimony was
inherently improbable or, correspondingly, that there was insufficient evidence
to support his conviction.
DISPOSITION
The
judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HALLER, J.
IRION, J.
name="_ftn1" title="">[1] Further statutory references are also to the Penal Code
unless otherwise stated.
