P. v. Wiley
Filed 5/24/13 P. v. Wiley CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOUR
>
THE PEOPLE, Plaintiff and Respondent, v. AARON G. WILEY, Defendant and Appellant. | B233989 (Los Angeles County Super. Ct. No. VA110193) |
APPEAL from
a judgment of the Superior Court
of
County, Philip H. Hickok, Judge. Affirmed.
Tara K.
Hoveland, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Linda C. Johnson and
Carl N. Henry, Deputy Attorneys General, for Plaintiff and
Respondent.
Aaron G. Wiley challenges the sufficiency of the evidence
identifying him as the perpetrator of an assault
with a deadly weapon against victim Carlos O.
support the jury verdict and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL SUMMARY
At 9:00 p.m. on the night of February 13, 2009, Carlos O. was standing on the
sidewalk near his home talking with his girlfriend, Myra Stephanie
Hernandez. A light-colored, older,
two-door Cadillac drove up. A passenger
got out of the car and started shooting at him.
He fired six or seven times.
Carlos O. ran, fell, and was shot in the foot. He was hospitalized overnight, and was
required to wear a cast for three or four weeks. He had a bullet fragment in his foot and a
scar.
In an
amended information, appellant was charged with assault with a firearm in violation
of Penal Code section 245, subdivision (a)(2).
It was alleged that he personally used a firearm in connection with the
assault on Carlos O. The jury deadlocked
on the assault against Carlos, and the court declared a mistrial as to that
count. It was retried. The jury convicted appellant and found true
the allegation that he personally used a handgun in the commission of the
crime. The jury found not true the
allegation that appellant personally inflicted great bodily
years for the assault on Carlos O. (three-year middle term plus four years on
the gun use enhancement). Appellant
filed a timely appeal.
DISCUSSION
I
Appellant
challenges the sufficiency of the evidence that he was the perpetrator of the
assault with a deadly weapon against Carlos O.
“In reviewing a claim for sufficiency of the evidence, we must determine
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 or special circumstance beyond a reasonable doubt. We review the entire record in the light most
favorable to the judgment below to determine whether it discloses sufficient
evidence—that is, evidence that is reasonable, credible, and of solid
value—supporting the decision, and not whether the evidence proves guilt beyond
a reasonable doubt. [Citation.] We neither reweigh the evidence nor
reevaluate the credibility of witnesses.
[Citation.]†(
50 Cal.4th 616, 638–639.) “‘[T]o entitle
a reviewing court to set aside a jury’s finding of guilt the evidence of
identity must be so weak as to constitute practically no evidence at all.’ [Citations.]â€
(People v. Mohamed (2011) 201
Cal.App.4th 515, 521.)
Carlos O.
testified that he saw the shooter for about three seconds before the first shot
was fired. He described the shooter to a
sheriff’s deputy as a male, black, 18 to 25 years old, 5’ 6†tall, 170 pounds,
wearing a black beanie, black shirt and blue jeans. He did not identify appellant as the shooter
from a photographic lineup shown to him a few days after the shooting. He explained at trial that he was 16 years
old at the time of the shooting, was unsure which photo was of the shooter, and
was afraid to identify the shooter. He
also failed to identify appellant at a live lineup held in November 2009
because he did not recognize him as the shooter. He explained that he was afraid to identify
the shooter at that time as well. Carlos
O. did identify appellant as the shooter at the preliminary hearing in November
2009. He was 80 to 90 percent sure of
this identification. He did not testify
at the first trial because he was afraid of retaliation. At the second trial, he identified appellant
as the shooter. He testified that the
shooter was 5’ 6†tall, skinny (150-160 pounds), with curly hair and
wearing black clothes, including a black sweater.
Laura
Gutierrez was in her truck nearby when Carlos O. was shot. She saw the shooter walking toward him and
shooting. Although she was afraid, she
got out of her truck and yelled at the shooter, who was about 12 feet away from
her. She estimated that she saw the
shooter’s face for less than a second.
At the second trial, Ms. Gutierrez identified appellant as the
shooter. She was uncomfortable about
testifying because she has children and did not want to be involved. She had not met appellant before the
shooting. She said that a street light
and lights on one of the buildings provided enough light for her to see the
shooter’s face. A month after the
shooting, Ms. Gutierrez identified appellant as the shooter from 30 to 35
pages of photographic lineups. On
November 18, 2009, she went to a live lineup.
She identified appellant as the shooter.
She also identified him as the shooter at the preliminary hearing.
At the
second trial, Ms. Gutierrez testified that the shooter came out of the rear
passenger side of the Cadillac, but previously she had testified that he got
out on the driver’s side. She said that
Carlos O. and his girlfriend, Ms. Hernandez, were together, attempting to
hide from the shooter. That account
conflicted with Carlos’s testimony that Ms. Hernandez stayed where she was
while he ran away from the shooter. Ms.
Gutierrez was shown defense exhibits A and B which depicted an unidentified
man. She said that it was not the
shooter because appellant was the shooter.
Deputy
Sheriff Robert Bankston responded to the shooting scene. He said the area was lit by an overhead
light. Carlos O. told him that the
shooter’s car was a white, older model, two-door Cadillac. Carlos described the shooter as a male black,
18 to 25 years of age, wearing a black beanie, black T-shirt and blue jeans, 5’
6†foot tall, and 170 pounds. He said
the shooter had exited from the passenger side of the Cadillac. Deputy Sheriff Phol Heang testified that he
interviewed Ms. Gutierrez at the shooting scene. She told him that the shooter exited the rear
left door of an older, white Cadillac.
Defense
witnesses Kevin Hands and Frederick Knowles testified that they were with
appellant at the home of appellant’s family at the time of the shooting. The defense also called Dr. Robert Shomer, a
psychologist who testified as an expert on eyewitness identification. He stated that the accuracy of an eyewitness
identification is adversely impacted by stress, the suddenness and violence of
the incident, low lighting, and a short duration of observation. A witness’ identification of a stranger or a
member of a different race, circumstances present here, is less accurate. Dr. Shomer also described the precautions
which should be taken in obtaining an identification from a photographic
array. He explained that once a witness
makes an identification, that impression cannot be erased and will result in
future identifications of the same person.
Issues
affecting witness credibility are for the jury to resolve. (People
v. Elliott (2012) 53 Cal.4th 535, 586.) In Elliott,
the defendant argued that testimony identifying him as the perpetrator of an
uncharged robbery should have been excluded because the victim saw the gunman
for only a few seconds, initially described the gunman as having a mole on his
lip, and had been influenced by having seen a composite drawing of the
perpetrator in the newspaper. The
Supreme Court held that the testimony was neither physically impossible nor
inherently improbable and provided substantial evidence that the defendant was
the perpetrator. (Ibid.)
In
Cal.App.4th 515, 522, the Court of Appeal held the fact that a witness was not
positive in identifying the defendant as the perpetrator goes only to the
weight of the testimony; inconsistencies in the descriptions given by the
witnesses did not require the jury to reject the witnesses’
identifications: “‘The strength or
weakness of the identification, the incompatibility of and discrepancies in the
testimony, if there were any, the uncertainty of recollection, and the
qualification of identity and lack of positiveness in testimony are matters
which go to the weight of the evidence and the credibility of the witnesses,
and are for the observation and consideration, and directed solely to the
attention of the jury in the first instance . . . .’ [Citation.]â€
(Ibid.) The court held that the jury was not obliged
to accept the testimony of an expert witness regarding inaccuracies in
of the defendant by the witnesses were inherently improbable because the
defendant’s physical appearance on the night of the robbery was a close match
to the witnesses descriptions, he was found near the crime scene with a do-rag
similar to the masks worn by the robbers, and he gave a false alibi. (Id.
at pp. 522–523.)
In
discussing an out-of-court identification, the Supreme Court in
a full opportunity to cross-examine the witness about the certainty of her
photo identification and about all aspects of the identification process, which
included occasions in which she identified others as the perpetrator. (Id.
at p. 481.) The court concluded that
under these circumstances, it was for the jury to evaluate the credibility of
the witness’ identification and the weight her testimony deserved. (Ibid.)
Carlos O.
and Ms. Gutierrez identified appellant as the shooter. Carlos explained that he did not initially
identify appellant as the shooter because he was afraid. Ms. Gutierrez was steadfast in her
identification of appellant as the perpetrator.
Appellant was given a full opportunity to point out inconsistencies in
their descriptions of the perpetrator, circumstances which would reduce the
reliability of their identifications, and the failure of Carlos to identify
appellant as the shooter at earlier stages of these proceedings. It was for the jury to determine whether to
credit the testimony identifying appellant as the shooter. It did so and found evidence beyond a
reasonable doubt that appellant was the perpetrator. The eyewitness testimony constitutes
substantial evidence of guilt which is neither inherently impossible nor
improbable.
DISPOSITION
The
judgment of conviction is affirmed.
EPSTEIN,
P. J.
We concur:
WILLHITE,
J.
SUZUKAWA,
J.
name="_ftn1" title=""> [1] Carlos O. was a minor at the time of the
commission of the offense, and we protect his identity accordingly. Appellant does not challenge his convictions
in the first trial for assault with a deadly weapon and second degree robbery
of victim Joel Gomez, arising from a separate incident. We omit any factual or procedural history
regarding those charges.
name="_ftn2" title=""> [2] At a hearing pursuant to Evidence Code section
402, appellant’s sister, Aarion Wiley, identified the man depicted in defense
exhibits A and B as Paul Wingler, a former schoolmate whom she knew drove
around Bellflower in an older-model, two-door white Cadillac. The trial court excluded her testimony and
exhibits A and B.
