P. v. Silva

Filed 6/17/08 P. v. Silva CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S. Bowers, Jr., Judge. Affirmed.

Rita L. Swenor, 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, Senior Assistant Attorney General, Michael C. Keller and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Arthur Jesus Silva (defendant) of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)[1]) and attempted second degree robbery ( 664/211). The jury found true the allegation that defendant personally inflicted great bodily injury in committing the assault and the attempted robbery. ( 12022.7, subd. (a).) The trial court sentenced defendant to state prison for six years. On appeal, defendant contends that insufficient evidence supports his assault and attempted robbery convictions. We affirm.

BACKGROUND

Around 9:50 p.m. on May 27, 2006, 17-year-old Julio Morales and others gathered to party under the Whittier Bridge in the area of Whittier and Bluff Road in Los Angeles County. Morales drank 40-ounce beers. Most of the others also were drinking. There was no lighting under the bridge. It was not completely dark, however, as the area received some light from a light on a nearby storage building and from a streetlight. Morales could see the persons he was talking to if they were close to him.

At some point, Morales saw defendant and a girl on the top of the bridge. There was sufficient light on top of the bridge for Morales to see defendants face. Morales knew defendant from elementary school. Defendant had been in an upper class and had bullied Morales. Defendant asked generally, What are you guys doing on my bridge? This is my bridge. Defendant told Morales and his companions to leave. Defendant asked those present if they were from a certain tagging group. Upon receiving a negative response, defendant identified himself as being from W.I.D. or Wicked Insane Demonious.

Santi from Moraless group went on top of the bridge to see what was going on. Morales remained under the bridge. Santi and defendant exchanged words. Morales saw his friend David pull back Santi and a girl pull back defendant. Defendant and the girl left. Later that night, defendant returned with another male. Morales testified that defendant was holding a flashlight and a small promotional bat. Morales subsequently testified that defendant and his companion had flashlights. Morales then testified that he was unsure if defendant had a flashlight or a bat. Morales could not see defendant initially because it was dark, and defendant was flashing a light in Moraless face. Defendant approached Morales and said, It was you, huh? Morales responded that he did not know what defendant was talking about.

Defendant told Morales to empty out his pockets. Morales said, No. Defendant then swung at and hit Morales on the left ear. Morales was not sure what defendant hit him with. Later, Morales testified that he was hit with a bat on his left ear. Morales testified that he did not have any weapons in his pockets. Morales raised his arms and moved backwards. As Morales backed up, defendant started swinging. Defendant struck Moraless left arm and kidney. Although Morales never saw a knife in defendants hand, and didnt know at first, he saw blood and realized that he had been stabbed. At some point defendant stopped swinging, and he and his companion left. Morales was taken to the hospital where he received eight stitches on his left arm and where he remained for two to three days. Morales did not receive any stitches on his torso area, but he did have a scar.

Morales told the first police officer who arrived under the bridge that he knew who attacked him; that it was Artie (defendant) who had attacked him. Four days later, on May 31, a police officer showed Morales a photographic lineup. Morales identified defendant as the person in photograph number two. Morales wrote that he selected photograph number two because he recognized the person in the photograph from my elementary school and because he is the one who stabbed me.

At trial, Morales testified that defendant was the person he saw on top of the bridge and that defendant was the person who stabbed him. Morales testified that when he identified defendant from the photographic lineup, he had no doubt that defendant was the person who stabbed him. Morales later testified that he was pretty sure that defendant was the person who stabbed him. When asked to give a percentage on how sure he was, Morales said, More than 50 percent. Asked if he was less than 100 percent sure, Morales responded, Im sure. Im sure it was him.

Diana Ceja was among those who congregated under the bridge. Ceja testified that it was pitch dark when she arrived under the bridge. There were no lights under the bridge, no lights on the bridge that cast light under the bridge, and no lights on the sides of houses or buildings that shone under the bridge. Those under the bridge used lighters to see.

Ceja testified that defendant was very friendly when he arrived and asked what Ceja and the others were doing. After similar conversation, defendant suddenly told those present to get out of his property. Defendant then said the name of his crew and his name from his crew. Defendant said, Oh, get off my property. This is my bridge. This is W.I.D. Real. Ceja and others apologized if they had bothered defendant and said that they would leave. Another from Cejas group, however, said, I have a strap. According to Ceja, defendant was alarmed and said, I will show you who has a strap. Santiago and David Cruz went to fight defendant but Cruzs girlfriend and defendants girlfriend pulled them apart.

Thirty minutes later, defendant returned with a male companion. When defendant and his companion climbed down under the bridge, about half of those in Cejas group ran. Defendants companion had a flashlight and a baseball bat. Ceja testified that she and other girls tried to protect Morales from getting stabbed. When asked how she knew Morales was going to get stabbed, Ceja responded, Because the guy had a knife or a dagger. And I was holding Julio behind me. And this guy was in front of me, and I was holding both of them. And all I saw was somebody like I guess go beside me and stab Julio. When asked who that somebody was, Ceja responded, Real. Ceja recognized defendant when she was face-to-face with him less than three feet as she defended Morales. Although Ceja did not have a lighter, she guess[ed] his friend, the one who came back with him, had a flashlight so thats how I saw both of them. When asked if that was the first time she had seen defendant, Ceja responded, I had seen him like around, but I never really had an acquaintance with him. As Ceja was helping Morales, Reals companion hit Morales brother Bryan Morales[2]with a bat.

[A]fterwards, there was a lot of commotion going on, and Daisy helped Ceja. Daisy and Ceja told him to get away, that they never meant to bother them in any way. [T]hey said, You dont mess W.I.D., and they just left. Ceja then ran all the way back to the railroad tracks for the guys and the girls that had left us. Ceja was hysterical and wanted them to help and to call the police.

Later, on cross-examination, Ceja testified that she ran for about five minutes and yelled that Morales had been stabbed. Defense counsel asked Ceja, did you see anybody stab anybody? Ceja responded, Yes, I did. Defense counsel asked Ceja, You were five minutes running away, pitch black, you were five minutes away, pitch black, you heard someone from say Julio just got stabbed, and your testimony is you were able to see Julio get stabbed? Ceja responded, Yeah. I was holding Real back first, and I was holding Julio. Thats when Julio left and Real left, and I had to run five minutes to reach the guys.

Defense counsel later asked Ceja how close she was to the railroad tracks when she heard that Morales had been stabbed. Ceja responded, It was like, I must have been like halfway when I heard Daisy screaming, he is stabbed, he is stabbed. I didnt really know if he had gotten hurt or stabbed. I heard he had gotten hurt. I saw blood, and I supposed he had gotten cut or something. I had to run for help, to get somebody with a cell phone. I ran to the guys.

On redirect examination, Ceja clarified that when she testified on cross-examination that she was five minutes away when she heard that Morales had been stabbed, that was after she saw defendant with something in his hand, reaching around [her] to get to Julio. That was after she had seen blood and when she went to get help.

Bryan testified that he was with his brother under the Whittier Bridge around 9:50 p.m. on May 27, 2006. It was pretty dark under the bridge, but Bryan could see peoples faces from light from a nearby storage place. Defendant came up to us, like trying to be all hard, and started claiming that bridge, saying that was his bridge and what were we doing there. Santiago and another person exchanged words with defendant and defendant and his girlfriend left.

Bryan further testified that about 15 to 20 minutes later, defendant returned with another male. Defendant pointed a flashlight he was holding at Morales and said, It was you, huh, it was you that was talking shit. Morales said, What are you talking about? Defendant said, Empty out your pockets. Morales refused and defendant started swinging at Morales. Bryan observed defendant make contact with Moraless body. When Bryan attempted to assist his brother, defendants companion struck him twice in the back of the head, apparently with a small baseball bat.

Bryan testified that he was unsure if defendant was holding a flashlight when defendant started swinging at Morales. Bryan then testified that he was not paying attention to defendants hands; he was looking at defendants face; but that he did not see defendant holding a flashlight, and he did not see anything in either of defendants hands as defendant was swinging at Morales. Bryan did not see a knife in defendants hands or at all that night.

Santiago Guevara testified that he was with Morales, Bryan, and others under the Whittier Bridge about 9:50 p.m. on May 27, 2006. Earlier that evening, while it was still light out, Guevara saw defendant and his girlfriend on top of the bridge. Defendant yelled, What are you doing here? to those present. Rudy and Guevara argued with defendant. Rudy and Guevara climbed up on top of the bridge and asked defendant what was wrong with him and told him to leave. Defendant started fidgeting as if he was going to pull out something. Guevara jumped back, jumped over a little fence, and walked back down. Defendants girlfriend held him back. Defendant left.

Guevara testified that defendant returned hours later with another male. One of them was holding a flashlight. Guevara initially testified that that person also appeared to be holding a weapon, but ultimately conceded that he could not identify anything other than a flashlight in that persons hands. The other person held a normal size baseball bat. That person hit Bryan on the legs with the bat.

As Guevaras friend Johvana held Guevara down, Guevara heard Morales scream. Guevara ran to Morales and saw him on the floor bleeding from his side. Guevara picked up Moraless shirt and saw thick, dripping blood. Guevara picked up Morales and carried him to another area, where Guevara called 911.

Defendant presented an alibi defense. Annie Silva, defendants mother, testified that defendant and she went to her sister Marina Urreas house in West Covina on May 27, 2006. They arrived at 5:00 p.m. and left about 12:30 or 1:00 a.m. Silva never lost sight of her son for any period of time longer than it took for him to use the restroom or get something to eat. Silva identified various photographs of defendant and other family members purportedly taken that night at Urreas house. The photographs bore the date and times Silva testified that she and defendant were at Urreas house.

Valerie Silva, defendants sister, testified that the photographs were taken with her digital camera, and that she had the photographs developed. She no longer had the camera, having lost it at Disneyland. According to Valerie Silva, defendant arrived at Urreas house while it was still light out and was still there when she left around midnight. She never lost sight of defendant for more than five minutes. Urrea and her son, Anthony Urrea, corroborated defendants alibi.

Jack Nadelle, an investigator photographer for the District Attorneys Office Bureau of Investigation, examined all of the photographs and compared the date stamp on one photograph to the date and time stamps on another photograph. Nadelle opined that the date and date and time stamps on the photographs appeared to be a different color and type size and to be placed on a different part of the photographs. Nadelle testified that he had not used every camera, but on the cameras he had used, he was able to manually change the date and time. The date and time that displays on a photograph can also, easily, be changed on a computer. Nadelle described his examination of the photographs as brief and not a professional thorough examination. Nadelle could not conclusively say that the photographs were not taken on May 27.

DISCUSSION

Sufficient Evidence Supports Defendants Convictions For Assault With A Deadly Weapon And Attempted Second Degree Robbery

Defendant contends that there is insufficient evidence to support his convictions for assault with a deadly weapon and attempted second degree robbery. Sufficient evidence supports the convictions.

A. Standard of Review

In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask 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. ([People v.] Rowland [(1992) ] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].) (People v. Young (2005) 34 Cal.4th 1149, 1175.)

In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation .] (People v. Young, supra, 34 Cal.4th at p. 1181.)

B. Assault With A Deadly Weapon

An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. ( 240.) Section 245, subdivision (a)(1), in relevant part, punishes assaults that are committed with a deadly weapon or instrument other than a firearm. As used in section 245, subdivision (a)(1), a deadly weapon is any object, instrument, or weapon which is used in such a manner as to becapable of producing and likely to produce, death or great bodily injury. [Citation.] (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)

Defendant argues, while the evidence that Mr. Morales was stabbed was less than substantial and subject to interpretation, more importantly, if he was, the evidence was insufficient that [defendant] was the one who did it. In support of this argument, defendant relies on conflicts and inconsistencies in the prosecution witnesses testimony about whether defendant or his companion was holding a flashlight or a bat when defendant and his companion confronted Morales under the bridge. Defendant argues that only Ceja testified that she saw a knife, that Bryan and Guevara testified that they did not see a knife, and that Guevara testified that he did not see defendant stab Morales. Defendant implies that Ceja could not see who stabbed Morales because she testified that it was pitch dark under the bridge and that people were using lighters to see others faces. In addition, although Ceja testified that someone went beside her to stab Morales, she also testified that she first heard that Morales had been stabbed when she was about five minutes from the bridge running to get help from those who ran when defendant and his companion returned. Morales testified that he did not know he had been stabbed, and, when asked how sure he was that defendant was the person who stabbed him, Morales responded, pretty sure, More than 50 percent, and then that he was sure.

Sufficient evidence supports the jurys verdict that defendant assaulted Morales with a deadly weapon. Morales testified that there was enough light under the bridge to see persons close to him. Morales testified that he had known defendant since elementary school and identified defendant as the person who stabbed him to a police officer who arrived at the scene, in a subsequent photographic lineup, and at trial. Morales was sure of his identification. Ceja testified that she saw him holding a knife or dagger, that she was present when Morales was stabbed, and that Real stabbed Morales. Together, Moraless and Cejas testimony provides a sufficient factual basis to support the jurys finding that Morales was stabbed and that defendant was the person who stabbed him. It was solely for the jury to resolve any conflicts or inconsistencies in the testimony. (People v. Young, supra, 34 Cal.4th at p. 1181.)

C. Attempted Second Degree Robbery

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.) An attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission. [Citation.] (People v. Kipp (1998) 18 Cal.4th 349, 376; 21a.) The act must go beyond mere preparation, and it must show that the perpetrator is putting his or her plan into action, but the act need not be the last proximate or ultimate step toward commission of the substantive crime. [Citation.] (Ibid.)

Defendant concedes that the evidence shows that defendant ordered Morales to empty his pockets, Morales refused, and defendant hit Morales. Defendant argues, however, that such evidence was insufficient to show that he intended to permanently deprive Morales of his property. In support of this argument, defendant relies on Cejas testimony that during the incident on top of the bridge someone said to defendant, you know, I have a strap, and that defendant was alarmed and responded, I will show you who has a strap. Without citation to the record or to authority, defendant asserts that the word strap colloquially refers to being armed with a gun and concludes that the most logical inference from this record is that [he] wanted to make sure that Mr. Morales did not have any weapons in his pockets. When Morales refused to empty his pockets, defendant argues, defendant did not say anything else about the contents of Moraless pockets or do anything that indicated that he wanted to take Moraless property.

Sufficient evidence supports the jurys verdict that defendant attempted to rob Morales. Even if defendants inference from the evidence that defendant commanded Morales to empty his pockets because defendant was concerned that Morales was armed with a gun was the most logical inference, it was not the only logical inference. Another logical inference the one impliedly found by the jury was that defendant intended to take from Morales whatever property was in Moraless pockets and abandoned that intention after Moraless refusal to empty his pockets and the ensuing stabbing. Because the evidence reasonably justified the jurys finding, defendants attempted second degree robbery conviction may not be reversed merely because the evidence reasonably justified another finding. (People v. Farnam (2002) 28 Cal.4th 107, 143 [Simply put, if the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding].)

Moreover, assuming that defendants construction of the evidence is reasonable, that is, that defendant commanded Morales to empty his pockets because defendant was concerned that Morales was armed with a gun, the only reasonable inference from the command was that defendant intended to take the gun away from Morales. Defendant offers no argument that the attempted theft of Moraless gun, if any, would not support an attempted robbery conviction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] All statutory citations are to the Penal Code unless otherwise noted.

[2] For clarity, Bryan Morales will be referred to as Bryan.