People v. Alvarado, 2d Crim. No. B185157 (Cal. App. 3/27/2007)
| Decision Date | 27 March 2007 |
| Docket Number | 2d Crim. No. B185157 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. HENRY ALVARADO, Defendant and Appellant. |
Appeal from the Superior Court of Los Angeles County, No. KA069654, Charles E. Horan, Judge.
Michael J. Hersek, State Public Defender, Maria J. Morga, Leeor Neta, Deputy State Public Defenders, for Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Corey J. Robins, Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
Henry Alvarado appeals his conviction, by jury, of home invasion robbery in concert with another (count 1), first degree burglary (count 2), false imprisonment by violence (counts 3, 6), witness dissuasion (counts 4, 7), carjacking (counts 8, 9), forgery (count 10), second degree burglary (count 11), and grand theft (count 12). (Pen. Code, §§ 211, 213, subd. (a)(1)(A), 459, 236, 136.1, subd. (b)(1), 215, subd. (a), 470, subd. (b), 487, subd. (a).)1 The trial court sentenced appellant to state prison for 13 years 4 months. Appellant challenges the sufficiency of the evidence and contends that the trial court committed evidentiary, instructional and sentencing errors. We affirm the judgment, vacate the sentence, and remand the case to the superior court for resentencing.
In 2004, Martha Hernandez and her two daughters lived with Martha's sister and brother-in-law on Loukelton Street in La Puente.2 On March 30, 2004, around noon, Martha and her five-year-old daughter were home alone when a man, who appeared to be in his early 20's, knocked on the door and asked for Martha's brother-in-law. When Martha indicated that her brother-in-law was not home, the man asked for a pen to leave a message. The man entered Martha's home, uninvited, as she handed him a pen. Martha told him to leave, and he responded, "[S]hut the F up." Her daughter said, Martha was also scared. Two other intruders entered the house, wearing oversized sweatshirts, with hoods covering their faces; one of them held a gun.
While the hooded intruders searched Martha's house, the first intruder moved Martha and her daughter toward the kitchen. At the direction of the first intruder, the gun-bearing intruder took Martha and her daughter to the bathroom, where they remained for approximately 20 or 30 minutes. The intruders took the keys to Martha's 1999 Expedition and her sister's 2003 Envoy and told Martha that they needed the cars, which they would leave in the neighborhood. They also told her not to call the police and stated that they knew where she lived and they would see her in the neighborhood. They took a laptop, jewelry, phone, purse, wallet, driver's license, and other small items. The police located both cars within a week.
After the intruders left, Martha went to a neighbor's house to wait for her cousin. Martha and her cousin went to school, before closing, to pick up Martha's eight-year-old daughter. Noticing that something was wrong, a school employee called the police. Martha did not call the police herself because the intruders had told her not to do so and she was afraid.
Los Angeles County Sheriff Deputy Alfredo Gomez interviewed Martha at her home on March 30. She described the first intruder as a thinly built, five-feet, nine-inch tall Hispanic man, between 20 and 25 years of age, with brown hair and brown eyes.
On April 7, 2004, Margaret McBride worked at the Robinsons-May Department Store in Puente Hills Mall, as a loss prevention manager. At around 6:00 p.m., McBride observed appellant, three other men, and a woman named Melissa take approximately 48 items of merchandise to a cash register.
Appellant and two of the men left the store. The fourth man stayed with Melissa, while she tried to obtain an "instant credit" account. Melissa provided Martha's identification to the cashier who processed the instant credit application in Martha's name. When the application was denied, Melissa "took out . . . and . . . wrote a check" for the purchase in the amount of $738.67, drawn on the account of Michael and Rosemary Black. Neither of the Blacks was among Melissa's shopping group. As marked, the merchandise Melissa "purchased" should have cost $1,400. The cashier "overrode" the value of each item Melissa presented for purchase and entered a lower value in the cash register, without authorization to do so. McBride observed this activity via surveillance cameras and a Foxmon cash register reporting system.
Melissa and her companion left the store with the merchandise. Two security officers arrested them outside the store and seized several items from them, including a bank card, social security card, several checks in different names and Martha's California identification card. Another security employee apprehended the cashier.
When Deputy Sheriff Eric Mankau arrived at the Robinsons-May parking lot, he found appellant in a parked car, with the engine running, in front of the store. Appellant said that he went to Robinsons-May to shop, selected some clothing, and returned to the car, to wait for Melissa to purchase clothing with a check that she had "found." The deputy arrested appellant.
In November 2004, Los Angeles County Sheriff Detective Angel Matute met with Martha regarding the recovery of her driver's license. Before their meeting, Matute had no knowledge of the March 30th home invasion robbery. During their meeting, Matute was looking in his file when Martha noticed a man's photograph and said that he was one of the men from the March 30th home invasion robbery. Martha had pointed to a June 14, 2001, Department of Motor Vehicles photograph of appellant. Matute placed an April 7, 2004, booking photograph of appellant in a six photograph lineup display and showed it to Martha. Martha circled appellant's photograph and stated that the person in that photograph was the "same guy but had gained some weight for sure." Martha also identified a photograph of appellant's codefendant, Munoz, as the intruder who had carried a gun during the March 30th home invasion robbery.
Appellant claims that there is insufficient evidence to support his convictions. In reviewing such a claim, we view the evidence most favorably to the People and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) The test is whether, after considering the evidence most favorably to the prosecution, any rational trier of fact could have found the elements of the crime to be true beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; Johnson, at pp. 576-578.) The same standard of review applies in cases in which the prosecution relies on circumstantial evidence to connect the defendant to the crimes. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) "'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'"'" (Ibid.) "'"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt."'" (Id. at p. 793.)
Appellant argues that Martha's out-of-court identification of him is not sufficient to prove that he is the perpetrator of the March 30th crimes (counts 1 through 9). The testimony of a single eyewitness identifying a defendant as a perpetrator is sufficient evidence to support a conviction. (Evid. Code, § 411; People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Even if identification is weak and strong alibi testimony is provided, appellate courts will defer to the jury's conclusion and not interfere with the verdict. (People v. Westbrook (1976) 57 Cal.App.3d 260, 262.)
Appellant stresses that Martha testified at the preliminary hearing and at trial that her earlier out-of-court identification of him was erroneous. A victim's inability to identify a suspect in court does not necessarily negate the evidentiary value of his out-of-court identification. (People v. Cuevas (1995) 12 Cal.4th 252, 257, 271-272.) Further, a victim's identifications of a suspect need not be positive to have evidentiary value. (People v. Midkiff (1968) 262 Cal.App.2d 734, 740.)
We may not reverse a judgment based on eyewitness identification unless the identification is "inherently incredible." (People v. Keltie (1983) 148 Cal.App.3d 773, 781-782.) Prior to his November meeting with Martha, Matute had no knowledge of the March 30th home invasion robbery. During their meeting, Martha noticed appellant's photograph in a file and recognized him as one of the home invasion robbers. She also identified another photograph of appellant when shown a display with photographs of five other suspects. Although Martha repudiated her out-of-court identification of appellant when she testified in court, her identification is not "inherently incredible." The jury heard but rejected appellant's attack on Martha's identification of him. We may not now reweigh the evidence or assess the credibility of witnesses to reach a different conclusion. (People v. Watts, supra, 76...
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