P. v. Coronado









Filed 11/9/10 P. v. Coronado CA5





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY CORONADO, Defendant and Appellant.

F059197 (Super. Ct. No. CRM000729B) O P I N I O N

APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
On the evening of March 9, 2009, appellant Timothy Coronado^[1], codefendant Steven Magana and M.E. armed themselves and went to the trailer^[2] where Ruben Coronado lived. When Ruben opened the door, they fired multiple gunshots at him. Despite sustaining several gunshot wounds, Ruben survived.
After a joint jury trial, Timothy and Steven^[3] were convicted of premeditated attempted murder, discharging a firearm at an inhabited trailer and unlawful participation in a street gang (count 1-3). Gang and firearm enhancements attached to counts 1 and 2 were found true, as was a great bodily injury allegation attached to count 1. Steven was also found guilty of two counts of unlawfully possessing a firearm (counts 4 & 5); street gang enhancements attached to counts 4 and 5 were found true. (Pen. Code, §§ 664/187; 246; 186.22, subds. (a) & (b); 12022.53, subd. (d); 12022.7, subd. (a); and 12021, subd. (e).)^[4]
Timothy was sentenced to an aggregate indeterminate term of 40 years to life, plus eight months.
Steven was sentenced to an aggregate indeterminate term of 40 years to life, plus four years.
Timothy and Steven filed separate appeals, raising different issues.
Timothy challenges the sufficiency of the evidence proving his identity as one of the shooters. This contention lacks merit. Also, he argues the court incorrectly computed the court securities fee and the facilities assessment, and points out that the amended abstract of judgment (abstract) omits portions of the sentence. Respondent concedes the points and we accept the concessions as properly made. We will modify the judgment to reduce the disputed fee and assessment and order the superior court to prepare a new abstract. As modified, the judgment will be affirmed.
FACTS
I. Prosecution Evidence
A. Ruben’s and Rudy’s Testimony
Ruben was born in 1955. He lived in the small community of Livingston. Timothy was one of Ruben’s nephews; Ruben knew him since birth. Ruben knew M.E. his entire life. Ruben was familiar with Steven, who he knew by a nickname, but they did not socialize.
Ruben became a Norteno gang member in his 30’s after a failed marriage. He suffered two felony drunk driving convictions in 1991 and 1992. He was convicted of felony drunk driving for the third time in 1996 and sent to prison. After his release, he had some parole violations for unspecified acts.
Ruben went to church services while he was imprisoned. In 2007, he gave his heart to God. He quit drinking and partying and quietly dropped out of the Norteno gang by ceasing to associate with other gang members. No one bothered him; he was accepted as an “older guy” who went to church.
Ruben’s son, Rudy, was a member of the Livas set of the Nortenos. Timothy, M.E. and Steven were fellow gang members. In 2009, Rudy decided to drop out of the gang. Rudy believed that Timothy, Steven and M.E. were criticizing him for this choice. Rudy decided to confront and fight them. He was going to let them “beat him up or whatever” to get the “satisfaction that they wanted.”
Rudy asked his father to accompany him to a gathering of gang members. He stated, “Just in case, Dad, they beat me down. Don’t let them kill me. Don’t let them beat me, Dad.” Ruben was going to stand by and watch, “[j]ust in case to pick him up in case he got knocked out.”
Rudy drove to Steven’s house with Ruben and an unidentified third person. None of them was armed. When Rudy got out of the car, he was approached by M.E. and Timothy. They were both armed with handguns. M.E. handed his gun to Timothy, who then passed it to a third person. Steven and about seven or eight other gang members also were present.
Rudy and Steven began arguing. Rudy hit Steven, briefly knocking him unconscious. Timothy and M.E. attacked Rudy. Ruben was struck in the head.
Rudy fell to the ground. Ruben grabbed M.E. and was about to hit him but stopped when he heard someone ask for a gun. Rudy and Ruben retreated back to their car because they did not have any weapons.
Rudy saw Steven grab a shotgun from a closet in the garage. Steven’s mother and father came outside. They tried to take the shotgun from Steven. M.E. grabbed it from Steven. M.E. exclaimed that he would shoot Ruben.
Rudy drove Ruben home.
Later that evening, Ruben and another son, Robert, were watching television and talking. Ruben was lying down. He heard a loud banging on his door and someone asking for Rudy. Ruben jumped up and opened the door. Although it was dark outside, the area was illuminated by an interior overhead light near the door.^[5] Timothy, Steven and M.E. were standing outside. Timothy and M.E. were each holding handguns. Steven was holding either a rifle or a shotgun.
As Ruben began to move backward, all three assailants started shooting. Ruben suffered five gunshot wounds. Numerous bullets struck the trailer’s interior.
They stopped shooting. Ruben, who had fallen to the ground, thought “they were going to walk up and finish me off.” Ruben reached for a gun. He told Robert to turn off the light and Robert broke it. The shooters left.
Ruben did not identify the shooters to the responding police officers. However, he did tell an officer that three people shot him; he did not say that two people shot at him. He does not remember telling an officer that he was asleep when someone knocked on his door.
On May 5, a drive-by shooting occurred at Rudy’s house. Rudy testified that shots were fired through his front window on May 5. He was hit in the right forearm and his step-daughter was hit in the chest and one of her hands. Rudy believed the shooting was committed by members of the Livas set of Nortenos. It was stipulated that the identities of the assailants were unknown.
Ruben believed the drive-by shooting was gang related. Ruben prayed and sought counsel from a friend. He was reluctant to identity his nephews as his assailants. Yet, Ruben “was mad at why would they shoot a little innocent girl.”
About six weeks after Ruben was shot, he went to the police. He identified Timothy, Steven and M.E. as the people who shot him because the violence has “got to stop somewhere.” Ruben identified them “[m]ostly because they shot an innocent little girl.” Ruben thought that by identifying his assailants, he could protect Rudy and his granddaughter.
B. Other Prosecution Evidence
Merced County Sheriff’s Deputy Brandon Soto reported to the crime scene. He testified that Ruben told him that he was sleeping when he heard a knock at the door. “He got up, answered the door and what he believed was two individuals standing there with what he thought were rifles started shooting at him.” Soto asked Ruben if he could describe either of them and Ruben replied that he did not remember anything. Soto testified that when he and another deputy approached the trailer, there were no sources of illumination other than their flashlights. He did not recall any lights on inside the trailer.
Merced County Sheriff’s Detective Charles Hale photographed the crime scene. He observed numerous bullet holes inside the trailer. He recovered a slug consistent with a .38-caliber bullet from the inside of a drawer. The bullet could have been shot from a revolver. No shell casings were found at the scene.
Dr. Harris M. E. Goodman treated Ruben at the hospital. Ruben sustained wounds to the right shoulder, cheek, neck, abdomen and left hip.
Merced County Sheriff’s Detective Lane Clark testified that he interviewed Ruben while he was hospitalized. When Clark asked Ruben who shot him, Ruben replied, “[I]t was in God’s hands.”
On May 12, Ruben went to the police station and asked to speak to Clark. Ruben told him that Timothy, M.E. and Steven were the people who shot him. Ruben said he was coming forward because his granddaughter had been shot and the violence needed to stop. Ruben told Clark about the altercation between Rudy and Steven on the evening of March 9. Ruben said that several people, including Timothy, M.E. and Steven, had firearms in their possession during this altercation. Clark showed Ruben a photo lineup and Ruben identified Steven as one of the shooters.
On May 14, a search warrant was executed at Steven’s home. A Bersa .380-caliber semiautomatic pistol was found in the attic above his parent’s bedroom.^[6] A 12-gauge shotgun was found in a van that was parked inside the garage. A box of .12-gauge shotgun shells that fit the shotgun and five .380-caliber cartridges that fit inside the Bersa pistol were found inside a closet in the garage. Five .410-gauge shotgun shells and a box of 12-gauge shotgun shells were found inside the drawers of a desk that was inside the closet. Employment documentation in Steven’s name and a utility bill addressed to him were found on top of the desk. Gang paraphernalia was found in the house.
Merced County Sheriff’s Detective Alex Barba testified that Steven’s father, Eleazor Magana, was present during the search. Eleazor said that he saw appellant and his friends with a shotgun a couple weeks before the search. Eleazor was shown the pistol found in the attic. Eleazor said that he believed it “belonged to Steven and his other son because they were gang members.”
Eleazor testified that he did not make these statements to the officer. Eleazor denied that the guns belonged to him. He testified that on one occasion he saw a shotgun or rifle. He told Steven that he did not want any trouble at home and Steven hid the gun.
Livingston Police Lieutenant Christopher Soria gave expert gang testimony. Livas is an active street gang that is a Norteno subset. Soria testified about the gang’s primary criminal activities and predicate offenses. Soria opined that Timothy and Steven were active Norteno members. Steven’s brother, Eleazor Renteria Magana, was a Norteno who was convicted of murder and other felonies in 2008.
Soria testified that prison gangs have a blood in-blood out oath: the only way to leave the gang was to be killed. Gang members who attempted to leave gangs have been assaulted, beaten and shot.
Soria also testified that respect is of great importance to a gang and its members. Force, fear and intimidation are used to obtain respect. To be disrespected is a serious insult. A gang member’s failure to respond to disrespect would be perceived as weakness.
When presented with a hypothetical altercation similar to the facts in this case, Soria opined the shooting would have been committed to benefit the gang as a way to regain respect.^[7]
Christopher Devrits, an astronomy professor at California State University, Stanislaus, gave expert testimony about the moon’s position and illumination on May 9. The weather was clear and it was one day before a full moon. He opined that the lighting conditions at 10:30 p.m. were nearly optimal.
It was stipulated that in a prior adjudication it was found true that Steven committed a felony in 2001 which prohibits him from possessing a firearm.
II. Defense evidence
Neither defendant testified.
Steven’s mother testified that after the fight two or three people stayed outside talking. Eventually, Steven went inside with his parents and siblings. His mother stayed up until midnight. Steven was at home the entire evening. His mother admitted that the first time she offered this information was to defense counsel during the trial. Also, when her son, Eleazor Renteria Magana, was on trial for murder in 2008, she and her husband testified he was home at the time of the murder.
Steven’s girlfriend testified that she arrived at his house after the fight. M.E. and Timothy were there. She left and returned after dinner. There were 10 to 20 guys in the garage, including M.E., Timothy and Steven. After talking for a while, most of them left. Steven and a few other guys went inside the house. She did not remember who they were. Steven played a video game with them. She remained at the house until 12:30 or 1:00 a.m. Steven was home the entire evening.
DISCUSSION
I. The People adequately proved Timothy was one of the shooters.
Timothy argues the convictions violate his state and federal constitutional due process rights because there is insufficient proof that he was one of the people who shot Ruben. We are not persuaded.
When reviewing a challenge to the sufficiency of the evidence, we assess the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence. [Citation.]” (People v. Vazquez (2009) 178 Cal.App.4th 347, 352 (Vazquez).)
Federal due process requires the state to prove every element of the offense beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
The appellate court adopts all reasonable inferences and presumes in support of the judgment the existence of every fact that a jury reasonably could have deduced from the evidence. The trier of fact makes credibility determinations and resolves factual disputes. (People v. Estrella (1995) 31 Cal.App.4th 716, 724-725.) We do not substitute our evaluation of a witness’s credibility for that of the fact finder. (Vazquez, supra, 178 Cal.App.4th at p. 352.) “‘“Few criminals would ever be convicted if their explanations were accepted as gospel truth.” [Citation.]’” (People v. Carlson (1960) 177 Cal.App.2d 201, 204.)
A reviewing court will not reverse a jury’s verdict under state or federal law solely because it would have reached a different result if it had been the fact finder. (Vazquez, supra, 178 Cal.App.4th at p. 352; Jackson v. Virginia, supra, 443 U.S. at pp. 418-419.) “‘Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.’ [Citation.]” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245; see also People v. Kraft (2000) 23 Cal.4th 987, 1053-1054.)
It is a well-recognized legal principle that the testimony of a single witness is sufficient to prove a disputed fact unless the testimony is inherently improbable or physically impossible. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Scott (1978) 21 Cal.3d 284, 296.)
“‘“To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] 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.]”’ [Citations.] Further, a jury is entitled to reject some portions of a witness’ testimony while accepting others. [Citation.] Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate.” (People v. Allen (1985) 165 Cal.App.3d 616, 623.)
Nonetheless, appellant argues that Ruben’s testimony was legally insufficient to support the jury’s verdict. He contends that eyewitness identifications are unreliable. He points out that Ruben did not immediately identify the shooters, that an officer testified Ruben initially said there were two shooters and that Ruben’s testimony included details not previously mentioned to the police. Also, he contends that Ruben might have falsely identified Timothy because he was angry about the drive-by shooting.
These were all factors for the jury to assess when determining whether Ruben was a credible witness. Alleged weaknesses in identification testimony of a single witness are to be evaluated by the jury. (People v. Fagalilo (1981) 123 Cal.App.3d 524, 530; People v. Allen, supra, 165 Cal.App.3d at p. 623.) When “the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court.” (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1499.) We do not reassess a witness’s credibility and substitute our evaluation or the one made by the fact finder. (Vazquez, supra, 178 Cal.App.4th at p. 352.)
We do not find Ruben’s identification of Timothy as one of the shooters to be inherently improbable. This is not a situation where a witness caught a fleeting glimpse of a stranger. Ruben was Timothy’s uncle; he had known Timothy for his entire life. Expert testimony was proffered to establish that the outdoor lighting conditions were optimal. Ruben testified there was a light on inside the trailer near the door which illuminated the surrounding area. He had not mentioned this detail prior to trial because no one asked him about it. Ruben did not have any prior convictions involving moral turpitude. For all of these reasons, this case is not one of the rare instances in which a reviewing court could conclude as a matter of law that the in-court eyewitness identification was unreliable and therefore legally insufficient to prove a disputed fact. Ruben’s identification of Timothy as one of the shooters alone is sufficient to prove this fact. (In re Gustavo M., supra, 214 Cal.App.3d at p. 1497.)
In any event, there was some additional evidence supporting the determination that Timothy was one of the shooters.
Ruben testified that he saw Timothy holding a handgun during the confrontation prior to the shooting. The slug recovered at the scene was consistent with a .38-caliber bullet and could have been shot from a handgun.
Also, the gang expert testified that Timothy was a member of the Livas set of Nortenos. The expert explained about the crucial importance of respect to gang members. The jury could reasonably conclude that Timothy shared in the desire to restore the respect the gang lost during the fight with Rudy prior to the shooting.
Finally, neither Steven’s mother nor his girlfriend testified that Timothy remained at Steven’s house after the confrontation with Rudy.
For all these reasons, we hold that the record contains substantial evidence from which a rational jury could find beyond a reasonable doubt that Timothy was one of the people who shot Ruben. Ruben’s eyewitness identification was not inherently improbable or physically impossible and we discern no basis to overturn the jury’s verdicts. The convictions did not infringe Timothy’s due process rights.
II. The security fee and facilities assessments were incorrectly computed.
Timothy was convicted of three substantive offenses. The court security fee and the facilities assessment are each $30 per offense. (§ 1465.8; Gov. Code, § 70373.) Therefore, a $90 security fee and a $90 facilities assessment should have been imposed. However, the court imposed a $150 security fee and a $150 facilities assessment. Respondent concedes that the security fee and facilities assessment must be reduced to $90 each. We accept this concession as properly made.
An unauthorized sentence may be corrected at any time. (People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045.) Since correction of the sentence does not involve any exercise of judicial discretion, remand to the trial court is not necessary. We will modify the judgment to reduce the security fee and the facilities assessment to $90 each.
III. The abstract contains errors.
When the court orally pronounced judgment, it imposed a fee pursuant to section 1465.5 and ordered DNA testing pursuant to section 296. The abstract fails to reflect these aspects of the sentence. Respondent concedes that an amended abstract must be prepared. We accept this concession as properly made.
The oral pronouncement of judgment is controlling over a written abstract or minute order. The appellate court possesses jurisdiction to order the trial court to prepare a new abstract that accurately reflects the sentence that was orally imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The sentence is modified to reduce the court security fee to $90 and the facilities assessment to $90. As modified, the judgment is affirmed. The superior court is ordered to prepare an amended abstract reflecting all of the following: (1) the $90 court security fee; (2) the $90 facilities assessment; (3) the fee imposed pursuant to section 1465.5; and (4) the DNA testing order. The superior court is ordered to transmit a certified copy of the amended abstract to the appropriate authorities.



_________________________
Levy, Acting P.J.

WE CONCUR:


_______________________________
Hill, J.


_______________________________
Poochigian, J.

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