P. v. Pepe

Filed 6/11/10 P. v. Pepe CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles E. Horan, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Robert Dewey Pepe, Jr. appeals from the judgment entered following his convictions by jury on count 1 attempted willful, deliberate, and premeditated murder (Pen. Code, 664, 187) with personal use of a firearm (Pen. Code,  12022.5, subd. (a)) and count 2 assault with a firearm (Pen. Code,  245, subd. (a)(2)), with findings that each offense was committed for the benefit of a criminal street gang (Pen. Code,  186.22, subd. (b)). The court sentenced appellant to prison for life with the possibility of parole, plus 10 years. We affirm the judgment.

FACTUAL SUMMARY

1. Peoples Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that between about noon and 4:00 p.m. on April 6, 1997, 10-year-old Bryant Rigual was working with his uncle, Edward Berber, in the back of a shop in Industry. Fluorescent lights illuminated the area in which they were working. Rigual testified at appellants August 2008 trial that appellant entered the back of the shop through a door and told Berber to come outside. Appellant had his right hand behind his back and Rigual could tell appellant was holding something. Berber, who was startled, did not comply.

Appellant took his right hand from behind his back, showing that he was holding a silver semiautomatic handgun with a brown handle. Appellant pointed the gun at Berber and fired it several times, probably unloading the clip. Appellant fired about five or six shots.[1] Rigual also testified that appellant stood where he was and fired all the rounds in the clip, but Rigual did not know how many rounds were in the clip. Once Rigual heard the shots, he crouched behind a table but his head was above the table and he saw everything. Rigual was about 10 to 15 feet from Berber when Rigual heard the shots.[2]Berber, who had been shot, fell. Appellant turned around and fled, and Rigual called 911. Berber, hospitalized, survived the shooting but died in 2006. Appellant was bald at the time of the shooting.

About a week after the shooting, Rigual spoke with Los Angeles County Sheriffs Detective Ron Duval, who showed him eight or more photographs. Rigual identified one of them as depicting appellant, the shooter. Some of the persons in the photographs were bald and others were not. Rigual did not remember how many of the persons depicted in the photographs had hair, whether one of the depicted persons was bald and the rest had hair, or if there were any differences among the photographs. Rigual did not remember seeing facial hair on appellant at the time of the shooting. Some of the persons depicted in the photographs had facial hair, but Rigual did not remember how many had facial hair. Appellants photograph, which Rigual selected, did not depict facial hair.

When shown the photographic lineup, Rigual reviewed the photographs for some time and he did not make a quick choice. He did not simply eliminate photographs depicting people who were not bald or eliminate photographs because they depicted people who had facial hair. Duval gave Rigual a witness admonition when viewing the photographs, and told Rigual that the culprit might or might not be depicted in the photographs. Rigual understood that, whether at the preliminary hearing or at trial, he did not have to identify appellant just because appellant was the only person seated at the counsel table other than Duval and the parties counsel. With that understanding, Rigual identified appellant at trial as the person who shot Berber.

Duval, the lead investigator in the present case, testified as follows. The present case was assigned to Duval the day after the shooting. That same day, an informant called him and told him a person named Temper was responsible for the shooting. After unsuccessfully trying to determine who Temper was, Duval called an informant. The informant called Duval back after speaking with someone who knew Temper.

Duval prepared a photographic folder containing six photographs, including one depicting appellant. According to Duval, the photographs were pretty much similar at least to the extent that it was a DMV type of photograph that just showed the . . . head and face of the person[.] Duval used a 1994 photograph of appellant. The photographic folder was typically what Duval used in 1997. On April 14, 1997, Duval met with Rigual, read, and had Rigual sign, a witness admonition form, and showed him the folder. Rigual selected appellants photograph. At some point, Duval learned that appellants nickname was Temper.

Duval testified the present case was an old case but he had kept the photographic folder in his files. However, from April 2004 through October 2006, Duval was recuperating from a work-related injury and, during that time, the files of his entire office, up to and including files for the year 2002, were purged and destroyed. This included appellants file and the photographic folder. Duval was able to reconstruct appellants file from microfiche, except for the photographic folder. Duval unsuccessfully tried to locate appellant, and in late 2006 or early 2007, Oregon police notified Duval that appellant was in Oregon.

According to Duval, a gang expert, when a gang member testified against another member of the same gang, the testifying member would be classified as a snitch, and either the testifying member or, if he were unavailable, a member of his family, would be killed. Duval opined that the Berber shooting was committed for the benefit of a criminal street gang.

Salvador Berber (Salvador) was another uncle of Rigual and was about 24 years old at the time of the shooting. Salvador had been a member of the Puente gang for perhaps 10 years, but stopped being a gang member when he testified against Johnny Gonzales, another Puente gang member. Salvador, who had been charged with robbery, testified against Gonzales in exchange for leniency in Salvadors case. Salvador testified against Gonzales right before Berber was shot. Salvador knew appellant was a Puente gang member with a moniker of Temper. Gonzales was in the upper echelon of the Puente gang and appellant looked up to him.

Diana Morales testified appellant had lived with her family for about five years, until 1996. Morales never knew appellant to be a gang member or to have a bald or shaved head.

2. Defense Evidence.

In defense, a professor of experimental psychology testified as to factors which impact eyewitness identifications. She described how the memory functions and that certain factors influence an accurate identification, including the length of time the event is observed, the period between the event and the identification, and the degree of stress associated with the event. According to the professor, memory of an event diminishes under high levels of stress, so a persons memory of a shooting would be less accurate than a persons memory of an everyday event. The process of viewing lineups, perpetrators, and even talking about an event influences memory. She also testified that the six persons depicted in photographic lineups should be similar in appearance, similarly photographed, and should all match the eyewitnesss description.

Renee Morales (Diana Moraless daughter) testified she had known appellant for about 20 years. Appellant lived with Renee Moraless family but moved out because she was pregnant, he denied the baby was his, and she told him to leave. Morales did not know appellant to be a gang member. Morales testified she occasionally spoke with appellant about four or five months. Possibly May of [1997]. Im not too certain. When Morales spoke with appellant at that time, he was in Oregon. Morales did not remember appellant explaining why he had moved to Oregon.

Los Angeles County Sheriffs Deputy Alejandro Ramirez testified that about 3:30 p.m. on April 6, 1997, he went to the shop. No evidence was recovered. If the shooter had fired all rounds in the clip of a semiautomatic gun, Ramirez would have expected to find shell casings.

3. Rebuttal Evidence.

In rebuttal, Duval testified he prepared the photographic lineup, all of the photos were of the same type, and they were generated from the same source. The persons depicted were all men of similar appearance, with pretty much the same complexion, and having the same hair color. None of the depicted persons were bald. All the persons depicted had closely cropped hair. Appellants photo depicted him with a zero cut and some of the other photographs depicted persons with maybe a half or a one. A zero cut resulted in about one-eighth of an inch of hair. Duval testified at appellants preliminary hearing that Duval did not remember whether the photographs were in color or in black and white.

CONTENTION

Appellant claims there is insufficient evidence supporting his convictions.

DISCUSSION

Sufficient Evidence Supported Appellants Convictions.

There is no dispute someone committed the offenses. The sole issue in this appeal is whether there was substantial evidence appellant was the culprit.[3] On this issue, [o]ur power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. [Citation.] (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.) Moreover, [t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.)

Rigual testified as to his observations of appellant and the events leading to the shooting. Rigual and Duval testified that, about a week after the shooting, Duval showed photographs to Rigual, and Rigual selected appellants photograph as depicting the shooter. Rigual identified appellant as the shooter at trial. There was nothing physically impossible or inherently improbable about Riguals identification testimony at trial. In the instant case, there is in the record the inescapable fact of in court eyewitness identification. That alone is sufficient to sustain the conviction. [Citation.] (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) Indeed,  [t]he 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 Robert V. (1982) 132 Cal.App.3d 815, 821.)

An informant told Duval that the shooters nickname was Temper, Duval later learned that that was appellants moniker, and Salvador confirmed at trial that Temper was appellants moniker. There was evidence that appellant was a Puente gang member who had a gang-related motive to shoot Berber in retaliation for the testimony of Salvador against Gonzales, another Puente gang member. There was also evidence of appellants flight, and therefore consciousness of guilt, in his unexplained departure for Oregon around the time of the shooting.

We conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed the offenses of which he was convicted, including sufficient identification evidence that he was the person who committed them.

None of the cases cited by appellant, or his argument, compels a contrary conclusion. Moreover, appellant asserts that [a]ppellants claim is that the evidence was insufficient to support appellants conviction based on the following: (1) a statement of an unknown informant; (2) a photo lineup identification by a ten year old who 11 years later identified the sole defendant in a courtroom; (3) the fact that the actual photo lineup was no longer available hampered the defense from effective cross-examination and from testing the fairness of the photo lineup; . . . and the general untrustworthiness of eyewitness identification.

However, first, there was more evidence received at trial than a statement of an unknown informant. Second, an out-of-court identification generally has greater probative value than an in-court identification. (People v. Boyer (2006) 38 Cal.4th 412, 480.) Third, appellant had an opportunity to thoroughly cross-examine Rigual and Duval on matters relating to the photographic lineup, and appellant in fact cross-examined them concerning this. The jury heard the evidence that the photographic lineup had been destroyed and the circumstances in which that occurred. Finally, as discussed, eyewitness identification evidence can support a conviction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] Rigual told police that three or four shots were fired. At appellants April 2008 preliminary hearing, Rigual testified that eight or more shots were fired. Rigual told police in 1997 that Berber pushed Rigual away just before the shooting. At the preliminary hearing, Rigual testified he had no physical contact with Berber just before the shooting. At trial, Rigual testified Berber did not shove him to the point that he would fall, but motioned him away or pushed him away.

[2] Rigual testified at the preliminary hearing that he was at least 15 feet from Barber.

[3] Appellant does not claim the trial court (1) erroneously denied any motion appellant brought based on the destruction of the photographic lineup, (2) erroneously admitted evidence of Riguals identification of appellant following the photographic lineup, or (3) erroneously admitted Riguals testimony identifying appellant at trial. Appellant expressly denies he is claiming the trial court erred. Appellant concedes Rigual identified him at the preliminary hearing, although we do not rely on this fact.