P. v. Matamoros 12/30/04 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B171776

Case Date: 03/16/2005

Preview:Filed 12/30/04 P. v. Matamoros CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. JOSE MATAMOROS, Defendant and Appellant. B171776 (Los Angeles County Super. Ct. No. PA040537)

APPEAL from a judgment of the Superior Court of Los Angeles County, Meredith C. Taylor, Judge. Reversed and Remanded in part; Affirmed in part. Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Based upon incidents that occurred within a three-week period at eight different commercial establishments, a jury convicted defendant Jose Matamoros of seven counts of robbery and one count of attempted robbery. In addition, in each of those eight incidents, defendant was convicted of being a felon in possession of a firearm. The jury found true the enhancement allegation that defendant personally used a firearm during the robberies and attempted robbery. The court found defendant had suffered a 1997 robbery conviction charged under the "Three Strikes" law. The court sentenced defendant to a term of 61 years and 8 months. On this appeal, defendant attacks the sufficiency of the evidence to sustain his convictions arising out of three incidents. In regard to the first incident, he argues that the evidence was insufficient because the victim only testified that defendant looked similar to the man who robbed him. In regard to the second incident, he argues that the jury should not have credited the victim's out-of-court identifications of him because at trial she testified that defendant was not the robber. We find no merit to either argument and therefore affirm the convictions arising out of those two incidents. In regard to the third incident, he urges that the hearsay statements of the victim who did not testify at trial were inadmissible in light of Crawford v. Washington (2004) 541 U.S. 36. We agree the statements may have qualified for treatment under Crawford but find admission of the evidence non-prejudicial. Lastly, defendant urges the trial court's decision to impose the upper term in sentencing him was error under Blakely v. Washington (2004) 542 U.S. ____. Given the ambiguity of the court's reason for selecting the upper term, we agree and remand for a new sentencing hearing.

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SUFFICIENCY OF THE EVIDENCE -- COUNTS 1 AND 2 Defendant first contends that his conviction of counts 1 (robbery) and 2 (possession by a felon of a firearm) must be reversed "because there is insufficient evidence of identification[.]" We disagree. Statement of Facts These two crimes were committed at Galaxy Communications on December 20, 2001. Two employees of the business were present: Freddie Moreno and Letty Rodriguez. Only Moreno testified at defendant's trial which took place almost two years after the crimes. Moreno gave the following evidence. The store sells electronic accessories such as pagers and cell phones. Defendant entered the store at approximately 6:00 p.m. Rodriguez was working at the counter; Moreno was in the back of the store. Rodriguez called for Moreno in a scared tone of voice. Moreno went out to the front of the store. A man was pointing a gun at Rodriguez. When the man saw Moreno, he pointed the gun at Moreno and asked for money. Moreno gave him the money in the cash register. The assailant forced Moreno and Rodriguez into the store's back room and fled. When the prosecutor asked Moreno if he saw his assailant in the court, the following exchange occurred: "A. [Moreno] I'll be very, very serious with it; but it doesn't really look exactly like that person I saw. "Q. [The Prosecutor] Do you see somebody that is similar to the person you saw? "A. He looks similar. Him right there." Moreno identified defendant. He testified that defendant's eyes and height were similar to those of his assailant. The prosecutor showed Moreno a gun that

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had been recovered when defendant was arrested. Moreno testified it was similar to the gun used in the robbery. On cross-examination, defense counsel asked if her client was "the person that you saw in the store that robbed you?" Moreno answered: "I'm going to be really honest. What he looks like, it looks like it's not." Moreno then explained: "From what I see it looks similar, but it might not be, you know. I don't know. It's been two years." On redirect examination, Moreno testified it had "been too long" for him to remember exactly the assailant's face. Detective William Caughey testified that several weeks after the robbery he showed Moreno a six-person photo show-up. Moreno carefully looked at the display and selected defendant's photo. On the comments section of the photographic display, Moreno wrote: "Photo number two [defendant] looks similar to the person that came in. It looks like his eyes are the same to the ones I remember. I remember seeing red eyes on him. They look alike to the person on photo number two." When Moreno made his photographic identification he did not express any hesitancy or reluctance in identifying defendant. In selecting defendant's photo, he told the detective "the eyes looked very familiar. [I] remember[] the eyes as being red." During deliberations, the jury asked for and received a reread of Moreno's testimony about the gun used in the robbery. Discussion Defendant argues that the evidence is insufficient to sustain his convictions for the two crimes committed at Galaxy Communications because Moreno could only testify that defendant looked similar to the person who robbed him. This was

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the same argument defense counsel unsuccessfully advanced to the jury.1 In other words, defendant suggests that an identification that lacks complete certitude is insufficient to support a conviction. This approach is incorrect. "It is a familiar rule that `[i]n order to sustain a conviction the identification of the defendant need not be positive. [Citations.] Testimony that a defendant "resembles" the robber [citation] or "looks like the same man" [citation] has been held sufficient. The testimony of one witness is sufficient to support a verdict if such testimony is not inherently incredible. [Citation.] The sufficiency of the evidence of identification is generally a question for the trier of the facts. [Citation.]'" (People v. Barranday (1971) 20 Cal.App.3d 16, 22.) Within three weeks of the crimes, Moreno carefully reviewed a photographic show-up and identified defendant as his assailant. He expressed no hesitation in making that identification. His handwritten notation indicated that he remembered defendant's eyes. At trial, Moreno again noted defendant's eyes in identifying him. Moreno explained that because of the passage of time he could only testify that defendant looked "similar" to the robber. Taken together, this evidence was sufficient to convince a rationale trier of fact beyond a reasonable doubt that defendant was the individual who robbed Moreno. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) Defendant claims that "[i]n his arguments to the jury, the prosecutor stressed that just because Mr. Moreno had a memory problem did not mean that [defendant]
For instance, she argued: "On the day he [Moreno] talked to the police he said it looks similar. His eyes look similar. [

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