Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA272443 Judith Champagne, Judge.
John Dwyer, 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, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
Jacob Encarnacion Garcia challenges his conviction for first degree murder and for being a felon in possession of a firearm. He argues that the selection of the jurors was procedurally incorrect and constitutionally infirm. We conclude that the court erred in reopening voir dire after 12 jurors were sworn. The error was forfeited and, in any event, did not prejudice Garcia. Garcia’s constitutional challenge based on the excusal of a Hispanic juror lacks merit.
Garcia also challenges the trial court’s evidentiary rulings with respect to his expert but fails to show that the court erred in excluding expert testimony. We also reject Garcia’s challenge to the sufficiency of the evidence. The jury credited the testimony of the eyewitnesses, and their testimony is sufficient to support the verdict.
With respect to his sentence, Garcia correctly argues that under Penal Code section 654, the trial court should have stayed his two-year sentence for being a felon in possession of a firearm. In addition, the trial court should have imposed and stayed section 12022.53, subdivisions (b) and (c) enhancements. We modify the judgment and as modified affirm.
Undesignated statutory citations are to the Penal Code.
FACTUAL BACKGROUND
A. Prosecution
Appellant is a member of the Varrio Vista Rifa gang. In the afternoon, on October 1, 2004, Carlos Bran confronted another member of the Varrio Vista Rifa street gang (gang member) after Bran noticed fresh graffiti at Bran’s apartment. Specifically, the gang member told Bran that it was his “varrio” and he could tag it. Bran hit the gang member in response. The gang member then warned Bran that he would return.
That evening, Bran was sitting outside his apartment with Josue Garcia (hereafter Josue to avoid confusion with appellant), Manuel Geovanni Ramirez, and others drinking beer. Christian Gonzalez alerted Bran that the person with whom he had the earlier confrontation had returned. As Bran and his friends sat outside, Elsa Rubio drove up and stopped her car. Bran walked to her car to speak to her. While Bran was standing next to Rubio’s car, a van stopped.
The parties agree that Josue Garcia was not related to appellant.
Gonzalez set up a video camera taping the location where Bran and his friends were sitting. Gonzalez then left with his wife to get ice cream. The video shows the shooting but does not reveal the face of the shooter.
Someone in the front of the van handed appellant, who was in the back of the van, a gun. Appellant exited the van and asked, “Who is it?” Someone inside the van pointed to Bran. Appellant shot Bran at approximately 8:00 p.m. A 911 call was received at 8:33 p.m. Bran died from the gunshot wound.
Rubio saw six people in the van, but saw the faces only of the driver, passenger, and two men who exited the van, including appellant. She drove away after she saw appellant holding a gun and before Bran was shot. Josue and Ramirez were present during the shooting.
B. Defense
1. Eyewitness Identifications
Dr. Robert Shomer testified extensively regarding the deficiencies with eyewitness identifications. His testimony is summarized in more detail below, but in essence he testified regarding photographic lineups, in person lineups, and the psychological factors supporting and undermining an eyewitness identification. In addition, as summarized in greater detail below, each eyewitness was extensively cross-examined regarding his or her eyewitness identification.
2. Alibi
Appellant testified in his defense. On October 1, 2004, in the afternoon he took lunch to the mother of his girlfriend, Patricia. Then, he went to the house of Jessica Castorena, where his friend and fellow gang member, Trinidad Duran, was staying. Brenda Aguirre, the mother of his baby, picked him up at that house at approximately 5:00 p.m. and they went to a hotel for about an hour. While there, he agreed that Castorena could borrow his car, which he had left at her house.
Appellant returned to Castorena’s house at 6:45 or 7:00 p.m. and stayed at the house the remainder of the night. Appellant agreed that Castorena’s house was approximately 60 miles from Bran’s apartment. Appellant admitted he was arrested in July 2004 for carrying a weapon and was convicted of a felony for false imprisonment.
Duran testified that between 4:30 and 6:30 p.m., appellant went to a hotel and loaned his car to Castorena. Castorena testified that at 7:00 p.m., appellant was back at her house. Castorena borrowed appellant’s car and returned after 10:00 p.m. When she returned, appellant and Duran were at her house and left to buy alcohol.
In rebuttal, Aguirre testified that she signed for the hotel room at 4:37 p.m. and left at 5:50 p.m. She dropped appellant off at Castorena’s house at approximately 6:20 or 6:30 p.m.
PROCEDURAL BACKGROUND
Appellant was charged with murder (§ 187, subd. (a)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). It was further alleged that appellant committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). It also was alleged that appellant personally used a firearm (§ 12022.53, subds. (b)-(e)). Appellant pled not guilty.
Appellant was tried by jury. During jury selection, after swearing in a panel of 12 jurors, the trial court reopened voir dire. When voir dire continued, defense counsel made a Wheeler motion (People v. Wheeler (1978) 22 Cal.3d 258) challenging the dismissal of a potential female Hispanic juror.
During closing argument, defense counsel, among other things, reminded the jury of psychological factors to consider in evaluating an eyewitness identification and attempted to discredit each eyewitness as well as the procedures used by the police in obtaining the identifications. The prosecutor, among other things, argued that the only person who could vouch for appellant’s whereabouts was Duran, who she argued was with appellant at Bran’s apartment.
After initially telling the judge it was deadlocked, the jury eventually convicted appellant of first degree murder and of being a felon in possession of a firearm. The jury found the gang enhancement to be true. The jury also found appellant personally discharged and personally used a firearm within the meaning of section 12022.53, subdivisions (b), (c), and (d).
The court sentenced appellant to 25 years to life for the murder and an additional 25 years to life for the gun enhancement under section 12022.53, subdivision (d). No mention was made of the section 12022.53, subdivisions (b) and (c) enhancements. The court sentenced him to a concurrent two-year sentence for being a felon in possession of a firearm. Garcia timely appealed.
DISCUSSION
Garcia raises numerous challenges to his conviction, several of which require the presentation of additional factual background. We begin with the jury selection issues including (1) reopening voir dire, and (2) denying defense counsel’s Wheeler motion. We next consider whether the trial court erred in sustaining objections to Dr. Shomer’s testimony regarding eyewitness identifications. We then turn to appellant’s challenge to the sufficiency of the evidence, which is based on the testimony of three eyewitnesses, each of which appellant argues is insufficient to sustain the verdict. Finally, we discuss sentencing issues including: (1) the application of section 654 to the felon in possession of a firearm conviction; and (2) whether the enhancements under section 12022.53, subdivisions (c) and (d) should have been stricken or stayed. Ultimately, we modify the judgment and affirm it as modified.
I. The Court Erred in Reopening Voir Dire But the Error Was Not Prejudicial.
Garcia argues that the court erred in reopening voir dire after the jury was sworn.
A. Factual Background
The day after the jury was sworn, potential Juror No. 4 gave the court a letter indicating that he had a job offer for the summer and needed to start the following day. The court stated, “Whenever you are going to select alternates, you have not completed the [jury selection] process. It is kind of up to counsel. I will [go] along with whatever you agree on.” Defense counsel asked to confer with Garcia, and after they conferred agreed to excuse Juror No. 4. The court then excused Juror No. 4.
Potential Juror No. 3 also wrote a letter to the court indicating that he had extreme claustrophobia, was afraid of elevators, and could not take the stairs because of his heart rate. Defense counsel stated, “This guy really doesn’t want to be here.” Defense counsel continued, “I hate to have a juror who doesn’t want to be here. A lot of times they don’t look at everything.” Following defense counsel’s statements, the prosecutor indicated that she did not mind stipulating to excuse Juror No. 3.
The court spoke to Juror No. 3. Juror No. 3 indicated that he suffered from panic attacks and was anxious. The prosecutor asked the court if the court would accept a stipulation to dismiss Juror No. 3 and defense counsel stated, “I have experienced panic attacks. I have heard they are really bad. It concerns me maybe he might wig out or something.” The court indicated that the parties had the opportunity to exercise peremptory challenges because they were reopening voir dire, but declined to accept a stipulation to excuse Juror No. 3 for cause.
Once voir dire was reopened, the first peremptory challenge was to the defense. Defense counsel struck potential Juror No. 12. Both the prosecutor and defense counsel then challenged replacement jurors. Then, the prosecutor struck Juror No. 3, the issue now challenged by appellant for the first time.
B. Legal Analysis
1. Garcia Agreed to the Procedure
Garcia argues that the issue of reopening voir dire is not forfeited even though he failed to object. First, not only did he fail to object, but instead he expressly agreed to the procedure. Defense counsel consulted with Garcia before agreeing to excuse Juror No. 4. At that point, counsel and Garcia agreed to reopen voir dire. In any event, assuming that it was merely a failure to object to the procedure, the issue is forfeited. (People v. Benavides (2005) 35 Cal.4th 69, 88; People v. Ervin (2000) 22 Cal.4th 48, 73; People v. Visciotti (1992) 2 Cal.4th 1, 38.)
2. It Was Error To Reopen Voir Dire But Garcia Was Not Prejudiced
The court should not have reopened voir dire after the jury was sworn. (People v. Cottle (2006) 39 Cal.4th 246, 249.) In order to show reversal for this error, prejudice is required; Garcia must show a miscarriage of justice. (Cal. Const., art. VI, § 13; see also People v. Ervin, supra, 22 Cal.4th at p. 73.) Garcia argues that he suffered prejudice because reopening voir dire (1) allowed the prosecution to be more selective in terms of jury service and thereby affected the prosecutor’s voir dire strategy, and (2) allowed the prosecution to remove Juror No. 3.
It is possible that reopening voir dire affected the prosecutor’s voir dire strategy just as it is possible that it affected defense counsel’s voir dire strategy. Garcia correctly points out that the number of peremptory challenges for prospective alternate jurors is fewer than for prospective jurors. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1018, fn. 13.) However, the difference in the number of peremptory challenges that can be exercised against an alternate as opposed to a juror does not show that Garcia was harmed in any way by the reopening of voir dire. Both defense counsel and the prosecutor had the opportunity to exercise additional peremptory challenges. The record does not show this procedure favored the prosecution.
In arguing that the removal of Juror No. 3 benefitted the prosecution, Garcia omits an important fact: defense counsel wanted Juror No. 3 off the jury. Defense counsel was concerned that Juror No. 3 might not look at all of the evidence because he did not want to be a juror. Defense counsel also was concerned that Juror No. 3 might “wig out.” Although the prosecutor also had concerns, the record in no manner supports appellant’s speculation that Juror No. 3 would have benefitted the prosecution and therefore the excusal of Juror No. 3 harmed the defense.
3. Garcia Does Not Show He Received the Ineffective Assistance of Counsel
Garcia argues that counsel’s failure to object to the reopening of voir dire constituted ineffective assistance of counsel. To show ineffective assistance of counsel, appellant must show: not only that counsel’s performance was deficient, but that “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) Assessing prejudice in this context requires analyzing “whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at p. 695; People v. Young (2007) 156 Cal.App.4th 1165, 1172.) “A claim of ineffective assistance will not be accepted on direct appeal unless the appellate record makes clear that the challenged act or omission was a mistake beyond the range of reasonable competence.” (People v. Montiel (1993) 5 Cal.4th 877, 911.)
Here, neither prong necessary to show ineffective assistance is demonstrated. The record indicates that defense counsel did not want Juror No. 3 on the panel. Defense counsel expressed substantial reservations regarding Juror No. 3 before Juror No. 3 was excused by the prosecutor. Thus, the failure to correct the court’s mistaken view that voir dire could be reopened before the alternates were sworn appears to have been a tactical choice made by defense counsel. In addition, as discussed above, there is no showing of prejudice. Based on the record on appeal, appellant’s argument that there is a reasonable probability that absent the reopening of voir dire would have resulted in a more favorable verdict is sheer speculation.
Because the record shows defense counsel had serious reservations regarding Juror No. 3, this case is nothing like People v. Hamilton (1963) 60 Cal.2d 105, 128, heavily relied upon by appellant. In Hamilton, a death penalty case, the court dismissed a juror who had an opposition to a verdict imposing the death penalty. Unlike here, in Hamilton the juror’s “disqualification could only be beneficial to the prosecution and prejudicial to the defense.” (Ibid.)
Hamilton was disapproved on another ground in People v. Daniels (1991) 52 Cal.3d 815, 866.
II. The Court Correctly Denied Defense Counsel’s Wheeler Challenge.
Garcia argues that the prosecution exercised a peremptory challenge in violation of the federal and state constitutions. Garcia argues that defense counsel demonstrated a prima facie case of discrimination because (1) the excused juror was a Hispanic female; (2) Garcia is Hispanic (which we assume for purposes of appeal); and (3) the prosecutor failed to ask the prospective juror any questions.
An objection based on state grounds is sufficient to preserve the objection based on federal grounds. (People v. Lancaster (2007) 41 Cal.4th 50, 73.)
1. Factual Background
After Juror No. 3 was dismissed, the new Prospective Juror No. 3 (who we shall refer to as Juror No. 9689), participated in voir dire. Juror No. 9689 was single, worked as a dog-tag engraver at the mall, and was planning to return to school. Her parents called the police when gang members called out to her brother. That incident would not have interfered with Juror No. 9689’s ability to serve as a juror. Juror No. 9689 knew nothing about firearms; agreed to give her attention to the medical testimony; had no quarrel with interpreters or with the presumption of innocence. After excusing one other potential juror, the prosecutor excused potential Juror No. 9689.
Defense counsel made a Wheeler motion. He stated: “There are not many Hispanics on the panel. This is the second or third Hispanic she has kicked off. This one is a young female. She also kicked off the other young female.”
The court responded: “I don’t know what other people you are talking about. This is the first time we have discussed this. This juror is very young, very immature. She giggled during some of her dialogue with the court. A sheer lack of life experience and maturity would suggest to the court that it wasn’t an exercise of a peremptory challenge done improperly.” “I don’t find a prima facia [sic] case based on what you have presented, counsel. I know we do get students, some of whom to be [sic] a little immature for this task. I don’t find that to be a protected group. The 21 year olds seemed to have very limited life experience. They can’t even speak above a whisper into the microphone. [¶] I just don’t find you made a sufficient case to require the People to explain their exercise [of the peremptory challenge]. . . .” Both the prosecutor and the court stated that the other juror referred to by defense counsel was not Hispanic.
2. Legal Principles
The exercise of a peremptory challenge based on group bias violates the state and federal constitutions. (People v. Lancaster (2007) 41 Cal.4th 50, 74.) The landmark cases of Batson v. Kentucky (1986) 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258 established these now fundamental principles.
The United States Supreme Court recently reaffirmed the procedure for assessing a claim of discrimination in this context: “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citation.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ [Citations.]” (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).)
“An ‘inference’ is generally understood to be a ‘conclusion reached by considering other facts and deducing a logical consequence from them.’” (Johnson, supra, 545 U.S. at p. 168, fn. 4.) Where a trial court incorrectly finds no prima facie case, the correct procedure generally is to remand the case for the trial court to “attempt to conduct the second and third . . . steps.” (People v. Johnson (2006) 38 Cal.4th 1096, 1103.) If the trial court finds it cannot adequately address the issues, it should order a new trial. (Id. at p. 1104.)
Where, as here, it is not clear whether the trial court used the reasonable inference standard, rather than the now disapproved “‘“strong likelihood” standard,’” we review the record independently. (People v. Howard (2008) 42 Cal.4th 1000, 1017.) “[W]e sustain the trial court if, upon independently reviewing the record, we conclude the totality of the relevant facts does not give rise to an inference of discriminatory purpose.” (Id. at p. 1018.)
3. Legal Analysis
Defense counsel’s Wheeler motion was based on the removal of only one juror. (See People v. Lancaster, supra, 41 Cal.4th at p. 76.) There is no allegation the prosecutor removed all of the Hispanic potential jurors from the panel and the record reveals no identification of any juror’s race other than Juror No. 9689. Defense counsel’s argument that “[t]here are not many Hispanics on the panel,” does not suggest that the prosecutor excused Juror No. 9689 based on her race. The challenge of one or two jurors, standing alone, can rarely suggest a pattern of impermissible exclusion. (People v. Howard, supra, 42 Cal.4th at p. 1018, fn. 10.) Where “defense counsel provided no other basis for inferring discriminatory intent, the absence of a pattern was significant . . . .” (Ibid.) In People v. Adanandus (2007) 157 Cal.App.4th 496, 503, 504, the court explained that striking three African-American jurors “alone is insufficient as a matter of law to show a prima facie case of discrimination by the prosecutor. . . .” The record in that case reflected that an African-American remained on the jury. Here, the link between striking a Hispanic woman and a discriminatory purpose was even more tenuous than in Adanandus because in that case three members of the same group were struck from the panel.
The prosecutor’s failure to ask questions of Juror No. 9689 also does not support an inference of discriminatory purpose as appellant argues. “The prosecutor, using permissible criteria, may have made up her mind about a prospective juror without venturing into a particular matter, and/or may have found no need to comment later on every reason for challenging a prospective juror . . . . Indeed, lawyers must use their voir dire time judiciously, and should not be penalized for doing so.” (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1018, fn. 14.) In addition, as respondent points out, it was not this prosecutor’s practice to question potential jurors regardless of whether they were excused and the court asked extensive questions of each potential juror.
Appellant states the trial court was required to hear the prosecutor’s reason for exercising the peremptory challenge rather than providing the court’s evaluation of the prospective juror. The identical argument was rejected by our high court in People v. Lancaster, supra, 41 Cal.4th at page 75 and People v. Cornwell (2005) 37 Cal.4th 50, 73-74. “Once the trial court concludes that the defendant has produced evidence raising an inference of discrimination, the court should not speculate as to the prosecutor’s reasons --it should inquire of the prosecutor, as the high court directed. But there is still the first step to be taken by the defendant, namely producing evidence from which the trial court may infer ‘that discrimination has occurred.’” (People v. Cornwell,at pp. 73-74.) Appellant has not shown the prosecutor violated the federal and state constitutions in excusing Juror No. 9689.
Notwithstanding our conclusion that no prima facie case was established here, better practice would be to ask the prosecutor her reasons for the peremptory challenges. (People v. Howard, supra, 42 Cal.4th at p. 1020.) “This may assist the trial court in evaluating the challenge and will certainly assist reviewing courts in fairly assessing whether any constitutional violation has been established.” (People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 13.)
III. No Error With Respect To Dr. Shomer’s Testimony Is Demonstrated.
Appellant argues that the trial court improperly limited Dr. Shomer’s testimony and thereby deprived him of the opportunity to present a defense.
A. Factual Background
Dr. Shomer testified for the defense regarding eyewitness identifications. Before his testimony, the prosecutor argued that Dr. Shomer should not be able to refer to the content of studies during his direct examination. For example, the prosecutor indicated another expert was asked, “Are you aware of this study when this many people who have been convicted were exonerated by DNA evidence?” The court indicated it did not “recall any improper reference to studies that he [Dr. Shomer] wanted to get into in direct” and asked counsel to avoid any question like the example posed by the prosecutor.
Just before Dr. Shomer testified, the prosecutor argued that Dr. Shomer routinely mentioned the content of studies including one regarding 125 people who were exonerated by DNA evidence, rape cases, and a 9/11 study. The court asked counsel if he planned to ask appropriate questions and defense counsel agreed. Dr. Shomer was then called to the stand.
The prosecutor objected when defense counsel asked, “Based on your background, training and experience, do you know whether or not the United States Department of Justice incorporated this research . . . .” The court found what other departments do to be irrelevant and that under Evidence Code section 352 it would not be time well spent.
The court sustained an objection to defense counsel’s question “what are the major findings of this research in eyewitness identification” and asked defense counsel to rephrase. Defense counsel then asked more specific questions regarding factors affecting accuracy in selecting a suspect from photographic lineups and live lineups, the effect on the identification of (1) the confidence of witnesses; (2) observation situation; (3) weapon focus; (4) cross-racial recognition; (5) expectation; (6) lighting of the scene and distance of the witness; (7) consumption of alcohol; and (8) stress from the situation. Dr. Shomer also testified as to the importance of the initial descriptions. Dr. Shomer responded to each of those specific areas without any sustained objections, except a request that he avoid giving narratives.
B. Legal Analysis
“‘Expert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b); [citations].) . . . [¶] . . . And because Evidence Code section 802 allows an expert witness to “state on direct examination the reasons for his opinion and the matter . . . upon which it is based,” an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.] [¶] A trial court, however, “has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.” [Citation.] A trial court also has discretion “to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.”’” (People v. Bell (2007) 40 Cal.4th 582, 608, citing People v. Coleman (1985) 38 Cal.3d. 69, 91.)
1. The Trial Court’s Evidentiary Rulings Were Correct
Initially, the court told defense counsel to ensure that his questions conform to the “requirements of the law,” and counsel agreed. Asking counsel to ask appropriate questions did not improperly limit Dr. Shomer’s testimony as appellant appears to contend. The practice of the Department of Justice was not relevant to an issue raised at trial. The trial court therefore properly excluded that evidence. Nor did the court err in requesting that defense counsel rephrase his question regarding the “major findings in the research.” Counsel rephrased his question and asked Dr. Shomer about many specific findings in the research. He was not precluded from asking about major findings when his questions were defined more narrowly.
The only specific study the prosecutor referred to and the court told defense counsel to avoid was a study about persons exonerated because of DNA evidence. Appellant does not challenge the exclusion of that specific study, referred to only vaguely by the prosecutor. He does not show that the one study that the court told him to avoid was relevant or that it was a topic within Dr. Shomer’s expertise. Appellant identifies no error with respect to the court’s specific evidentiary ruling.
2. Appellant’s Argument Does Not Reflect The Facts of This Case
Appellant’s focus is not on the court’s specific rulings, but is much broader; he argues that “[t]he trial court erred when it precluded Dr. Shomer from testifying about the major findings in the field of eyewitness identification and the studies upon which he relied in forming his opinion.”
This broad argument is inconsistent with what happened. The court did not preclude Dr. Shomer from testifying about the major findings in the field of eyewitness identification. Dr. Shomer testified at length about the major research findings in response to counsel’s questions. Specifically, he testified that to have a valid identification there must be a fair test; it was difficult to identify a stranger; erroneous identifications result when a witness identifies the person in a photographic lineup who most resembles but is not the suspect; seeing something in the midst of a stressful life situation creates more inaccuracy; a sudden unexpected situation is difficult to observe; where a weapon is involved a witness is more likely to focus on the weapon than the person holding the weapon; cross-race identifications are less accurate; consumption of alcohol affects the accuracy of an identification; stress overwhelms the processes needed for accuracy; certainty of the witness is not related to accuracy; and problems in a six-pack are not corrected by a subsequent lineup.
The court did not exclude Dr. Shomer’s testimony or limit it in such a way that effectively excluded it. Appellant explored his defense of incorrect eyewitness identifications extensively through Dr. Shomer’s testimony, through his cross-examination of the eyewitnesses, and through his argument to the jury. There is no merit to his argument that he was denied the right to present a defense. (Indeed, in another portion of his brief, appellant accurately states “through cross-examination and expert testimony, he challenged the reliability of the eyewitness identification of him as the shooter.”)
There is nothing in the record that supports appellant’s argument that defense counsel was precluded from describing relevant admissible information. While appellant states that the court “erroneously assumed that Dr. Shomer could not refer to any studies on which he relied,” no such ruling was made. The only study mentioned was vaguely described as referring to DNA exoneration, and appellant does not show that such a study was admissible. It is not a study of the effect of a psychological factor on eyewitness testimony as it did not relate to how perception is affected by psychological factors, memory or retrieval. (See People v. McDonald (1984) 37 Cal.3d 351, 361-362, overruled on another ground People v. Mendoza (2000) 23 Cal.4th 896, 914.) Finding no error, we need not consider prejudice. But even assuming that the trial court improperly limited Dr. Shomer’s testimony, appellant does not show prejudice. All of the factors appellant stresses as a demonstration of the weakness of the eyewitness testimony in this case were factors included in Dr. Shomer’s testimony and presented to the jury for its consideration.
IV. The Record Contains Substantial Evidence to Support the Verdict.
Garcia argues the record lacks substantial evidence from which a reasonable jury could conclude appellant murdered Bran.
A. Factual Background
1. Josue
Josue testified that at trial he was 90 percent sure appellant was the person who shot Bran. Later, he testified it was easy to recognize appellant as the person who shot Bran. Appellant was bald at the time of the shooting but had grown out his hair and lost weight by the time of trial. The night of the shooting, detectives lined six people up against a wall and asked Josue to identify anyone involved. Josue identified one person but was not sure. The person he identified was not appellant, but Josue thought it was the gang member Bran confronted earlier in the day.
Josue testified that he was asked to identify the shooter, but then clarified that it was anyone involved.
The next morning, Josue identified appellant from photographic lineups. Josue told the detectives that he might be able to identify the shooter but it “wasn’t a sure thing.” Josue wrote underneath the picture, “I circled picture number six as tentative identification of suspect that shot my friend.” Josue was 100 percent sure of that identification but wrote “tentative,” because he did not understand the definition of “tentative.” Josue thought it would be easier to make the identification in person. At a lineup, two individuals caught Josue’s attention. He identified appellant as the suspect based on appellant’s face and build. Josue identified appellant at the preliminary hearing as the person who shot Bran.
Josue remembered describing the shooter as tall, fat, bald, and with a moustache. By tall, he meant the shooter was taller than Josue who was five feet two inches or five feet four inches. Josue could not estimate the shooter’s weight but stated the shooter was fat.
Josue testified his eyesight is not good, but he did not wear glasses. The night of the shooting, he was able to see the shooter and did not require glasses. Josue acknowledged that he had been drinking the night of the shooting but stated he was not intoxicated when he saw the shooting.
2. Elsa Rubio
Rubio saw someone exit the van, holding a gun, but left prior to the shooting. On October 4, 2004, Rubio was shown a photographic lineup. She recognized number six from one lineup, but at the time of trial did not remember if she told the detectives he was the person with the gun. According to Detective Julian Perez, Rubio first told him that appellant’s picture resembled the driver, but then said that actually it was the shooter. Rubio’s statement was tape recorded, but the tape cut off in the middle before she said that appellant was the shooter.
3. Manuel Geovanny Ramirez
Ramirez drank six beers in the four and a half hour time period from when he and Bran returned home and Bran was shot (though he also testified that he had one 24-ounce beer). (After the shooting, he bought more beer.) He testified that he was not drunk at the time of the shooting and could see everything clearly. He also testified that the street lights provided enough light to see the appellant’s face.
After the shooting, officers showed him pictures. Ramirez identified appellant as the shooter but was not certain of this identification. Ramirez identified appellant in a lineup and was certain this time. Ramirez identified appellant at the preliminary hearing. At trial, he was sure that appellant was the shooter. Ramirez gave varying descriptions of the height and weight of the shooter ranging from six feet to five feet seven inches, to five feet and from 170 pounds to 200 pounds to 265 pounds. Ramirez was not focused on the height or weight when appellant exited the van and it is not easy for him to estimate height or weight.
Ramirez’s testimony was postponed because he had been drinking the day he was scheduled to testify.
B. Legal Analysis
For challenges to the sufficiency of the evidence, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “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 (2005) 34 Cal.4th 1149, 1181.)
If Rubio had been the only eyewitness, appellant’s challenge to the sufficiency of the evidence would be more persuasive. She was not present at the actual shooting. Her identification of appellant as the shooter was confusing because she also identified him as the driver. However, Josue and Ramirez, who were present through the shooting, identified appellant as the shooter. They did so more than once, and the jury obviously credited their testimony. Both of them had been drinking, Josue admitted his eyesight was poor, and both had trouble estimating the shooter’s dimensions. Nevertheless, despite these issues, upon which the jury had expert testimony, an instruction, and significant argument, the jury still credited these eyewitness identifications. It is not the function of this court to reweigh the witnesses’ credibility. The inconsistencies identified by appellant do not show that it is unbelievable, but created a question for the jury to decide. The jury, “sole judge of the credibility of witnesses,” (People v. Young, supra, 34 Cal.4th at p. 1181), believed the eyewitnesses despite the inconsistencies and other factors identified by appellant.
V. The Trial Court Should Have Stayed Appellant’s Sentence For Being A Felon In Possession of a Firearm.
Garcia argues the court should have stayed the sentence for being a felon in possession of a firearm under section 654 instead of imposing a concurrent sentence on that count. Garcia argues the gun possession and the murder were part of an indivisible course of conduct, and there is no substantial evidence that appellant possessed the gun for an objective other than committing murder. The Attorney General argues that Garcia had possession of a firearm while in the van, exited the van with the firearm, spoke to Bran, then shot Bran.
Section 654, subdivision (a), provides in part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) The “threshold inquiry is to determine the defendant’s objective and intent.” (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) Cases applying this rule in the context of convictions for being a felon in possession of a firearm have held that “where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense. [Citation.]” (Ibid.)
Rubio’s testimony was somewhat confusing, but essentially provided that someone in the van reached to the front and took a gun from someone in the front. When the shooter exited the van, he had the gun. The evidence therefore indicates that appellant was handed the gun immediately before the shooting. Under these circumstances, we agree with appellant that the gun possession and murder were part of an indivisible course of conduct. The single objective was to shoot Bran and appellant was handed a gun to achieve that objective.
This case is closest to People v. Venegas (1970) 10 Cal.App.3d 814, where the defendant obtained the gun in a struggle just prior to the shooting. (Id. at p. 821.) The court stayed the sentence for possession by a felon pursuant to section 654. Although the Attorney General relies heavily on People v. Jones (2002) 103 Cal.App.4th 1139, in that case, the defendant arrived at the scene with possession of the firearm.
There was no showing that appellant had possession of the gun except immediately prior to the shooting (or even that he had knowledge that someone else in the van had a firearm). The trial court should have stayed the sentence for possession of a firearm by a felon, which was the lesser of the two crimes. (People v. Bradford (1976) 17 Cal.3d 8, 22-23.)
VI. The Court Should Have Imposed and Stayed the Section 12022.53, Subdivisions (b) and (c) Enhancements.
Garcia argues the court should have struck the enhancements under section 12022.53, subdivisions (b) and (c). The Attorney General argues the enhancements should have been stayed. The Supreme Court recently resolved this issue, concluding that when a court imposes punishment for the section 12022.53 enhancement with the longest term, the remaining section 12022.53 firearm enhancements must be stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.) Applying Gonzalez, the trial court should have imposed and stayed the section 12022.53, subdivisions (b) and (c) enhancements after it imposed a 25 year to life sentence on the section 12022.53, subdivision (d) enhancement.
DISPOSITION
The judgment is modified in the following manner: (1) the two-year sentence for possession of a firearm is stayed, and (2) the section 12022.53, subdivisions (b) and (c) enhancements are stayed. As modified, the judgment is affirmed. The case is remanded to the trial court. The trial court is directed to issue a modified abstract of judgment and forward it to the Department of Corrections.
We concur: RUBIN, J., FLIER, J.