Filed 8/27/13 P. v. Lewis CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT


THE PEOPLE,                                                          B241490

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA082478)
         v.

BRIAN LEWIS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Darrell Mavis, Judge. Reversed in part, affirmed in part.

         Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Defendant Brian Lewis appeals from his convictions of second degree robberies,
burglary and petty theft with a prior. He contends there was insufficient evidence to
support the convictions and the petty theft with a prior conviction must be reversed
because it is a lesser included offense to the robberies. We reverse the petty theft with a
prior conviction and otherwise affirm.1

                  FACTUAL AND PROCEDURAL BACKGROUND

       Defendant was charged by amended information with four counts of robbery, one
count of petty theft with a prior and one count of burglary, all arising from the same
incident occurring on December 26, 2010, at the Rite Aid on the corner of Washington
and Hill in Pasadena. Defendant’s first trial resulted in a mistrial after the jury was
unable to reach a verdict. After a second jury convicted defendant of all charges except
one of the four robberies, the trial court found true the prior conviction and prior prison
term allegations. It sentenced defendant to a total of 37 years to life in prison comprised
of concurrent 25 year to life terms on each of the three robbery convictions pursuant to
the Three Strikes law, plus two separate five-year prior conviction enhancements (Pen.
Code, § 667, subd. (a)) and two separate one-year prior prison term enhancements (Pen.
Code, § 667.5, subd. (b)); sentence on the convictions for burglary and petty theft with a
prior was stayed pursuant to Penal Code section 654.2 Defendant timely appealed.

A.     The People’s Case

       Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the evidence at defendant’s second trial established that two
sets of automatic doors separated by a vestibule led from the parking lot into the Rite Aid


1      The People concede that the petty theft with a prior conviction (count 5) must be
reversed because it is a lesser included offense of the robberies. (People v. Villa (2007)
157 Cal.App.4th 1429, 1435.) We agree and reverse the conviction on count 5.

2      All future undesignated statutory references are to the Penal Code.

                                              2
in question. On December 26, 2010, the date of this incident, the more expensive liquor
was kept in a padlocked glass cabinet on aisle eight, to which only the managers had
keys. That day, store manager Annie Matosevic, shift supervisor Tina Baron and cashiers
Alejandra Salcedo and Serineh Didarloo were working. The locked liquor cabinet was
full when Matosevic walked by it at about 5:50 that morning; it was still full when she
walked past it throughout the day.

       1.     Baron Robbery (Count 2)

       Baron testified that at a little past 4:30 that afternoon, she was straightening up the
store from the Christmas rush when she noticed defendant and a woman in the liquor
aisle. After they declined her offer of help, Baron resumed her task in the next aisle over.
Not long after that, the woman asked Baron to take her to the hair products aisle, which
Baron was about to do when something, Baron could not recall what, caused her to stop.
Moments later, Baron noticed that defendant had taken liquor out of the locked cabinet
and put it into a bag, which he should not have been able to do without assistance from a
store employee. As defendant and the woman walked away from the liquor cabinet,
Baron followed them and asked defendant to show her what was in his bag. When
defendant refused, Baron yelled out for Matosevic and tried to grab the bag, but
defendant evaded her by tossing it over his shoulder. Baron pursued defendant and his
companion as they walked quickly towards the exit doors, all the while trying to get the
bag away from him. As Baron and defendant reached the cash registers located just
before the double set of exit doors, Matosevic approached. While Matosevic struggled
with defendant for possession of the bag and other employees tried to close the front
doors, Baron went to call 911. When Baron spoke to the police later that day, she felt
traumatized by the incident. She identified defendant from a photographic lineup shown
to her by the police on February 1, and in court.3




3      The jury found defendant not guilty of second degree robbery of Baron.

                                              3
       2.     Matosevic Robbery (Count 1)

       Matosevic testified that when she went to the front of the store in response to
Baron either calling Matosevic by name or yelling for someone to call 911, she saw
defendant and a woman walking towards the doors leading to the vestibule. Defendant
was carrying a red plastic Target bag over his shoulder, from which Matosevic could see
boxes sticking out. Matosevic made contact with defendant at the check stand and asked
him to give her what he had. Defendant said, “I promise to have nothing of yours.”
Matosevic tried to keep defendant from getting past her and through the first set of doors,
but after some dodging and weaving, defendant dodged past Matosevic and into the
vestibule area. When Matosevic tried to grab defendant’s jacket to keep him from
leaving the store, defendant threw his arm out, hitting Matosevic in the shoulder and face.
At some point, defendant’s plastic bag fell to the ground and some boxed bottles of
Patron and a pair of bolt cutters fell out of it. As Didarloo and Salcedo were trying to
close the exit doors, defendant grabbed the bag and barreled through the doors to the
parking lot, causing Didarloo and Salcedo to fall. Matosevic pursued defendant but gave
up the chase after he got into a car driven by the woman he had been with in the store.
When Matosevic returned to the store, the boxed bottles of Patron and the bolt cutters
were still on the ground in the vestibule area and her employees were already on the
phone with the 911 operator. Matosevic discovered that the padlock on the glass liquor
cabinet had been broken and multiple bottles of Patron, Hennessey V.S.O.P. and Remy
Martin were missing from the cabinet. At the request of the police, Matosevic created a
CD of the incident from the video taken by the store’s surveillance cameras. Matosevic
narrated the CD as it was played for the jury. Matosevic identified defendant in court,
but had been unable to identify him from the photographic lineup shown to her by the
police about one month after the incident.




                                             4
       3.     Salcedo Robbery (Count 3)

       Salcedo testified that she was in the cologne aisle when she heard Matosevic
arguing loudly with a man. Leaning over, Salcedo was able to see Matosevic confronting
defendant in front of the cash registers, about 35 or 40 feet away. As defendant tried to
get past her, Matosevic asked him to show her the contents of his bag. Defendant
refused, repeating, “It’s not from here,” several times. Salcedo moved towards the doors
with the intention of keeping defendant from leaving the store and noticed Didarloo also
moving in that direction. While Salcedo stood in the middle of the open doors hoping to
block defendant, Didarloo was trying to close the doors. To get past Salcedo, defendant
shoved her against the security gate, causing Salcedo to hit her head against the gate.4
Salcedo tried to hang onto defendant’s jacket but he pulled away and ran through the
doors. After Matosevic ran after him, Salcedo noticed three bottles of Patron and a bolt
cutter on the ground. Salcedo picked up the bottles and the bolt cutters to move them out
of the way, but when a customer told her that the police would want those things as
evidence, Salcedo put them back where they had fallen. The surveillance video was
played again and Salcedo narrated it. Salcedo was not shown a photographic lineup, but
she identified defendant in court.

       4.     Didarloo Robbery (Count 4)

       Didarloo testified that she realized something was wrong when she heard Baron
trying to stop a customer from leaving the store. She ran to tell Matosevic that Baron
needed help and together they walked toward Baron. At the cash registers, Didarloo saw
Baron confronting a man holding a big, red Target bag, and the man’s female companion.
The man was refusing Baron’s repeated request that he put down the bag. As Matosevic
went to assist Baron, Didarloo went to close the doors to keep the man from leaving until
police arrived. Didarloo’s back was to the commotion and she had almost succeeded in


4      Until she saw the surveillance video, Salcedo thought she fell and hit her head on
the ground.

                                             5
getting the doors closed when she was pushed from behind, causing her face to hit the
door. After the man and woman ran out of the store, Didarloo saw bolt cutters and two
boxed bottles of Patron on the ground. Didarloo was not shown a photographic lineup
and was unable to identify defendant in court.
        Detective Robert Jenkins prepared a photographic lineup (six-pack), placing
defendant’s photograph in position number four. Baron identified defendant as the
person she confronted in the store that day; Matosevic was not able to make an
identification. Jenkins did not show the six-pack to Salcedo or Didarloo.

B.      The Defense Case

        When Pasadena Police Officer Richard Padilla arrived at the Rite Aid at about
4:43 p.m. that afternoon, he saw the bolt cutters and boxed bottles of Patron on the
ground in the vestibule. According to Padilla’s report, Baron told him that the first time
she saw the Target bag it was empty and in the possession of the suspect’s female
companion; Baron said she saw the suspect using the bolt cutters to break the padlock on
the liquor cabinet and then saw him holding the bolt cutters as he fled the store. Salcedo
told Padilla that she fell and hit either her head or her back during the scuffle with
defendant.
        The criminalist dispatched to the scene that afternoon explained that he did not
take any DNA samples because so many people had been in close proximity and even
touched the relevant items, that no useful information could be gleaned. He dusted the
items for latent fingerprints, but did not find any useable ones.
        A DNA expert testified that, in his opinion and contrary to the testimony of the
police department criminalist, useable DNA could have been obtained from the bolt
cutters even though people in addition to the suspect may have also left some DNA on
them.




                                              6
                                       DISCUSSION

A.     The Convictions Are Supported By Substantial Evidence

       Defendant contends he was denied due process and a fair trial because the
convictions were not supported by substantial evidence. He argues that no physical
evidence tied him to the crimes and the eyewitness identifications were not sufficient to
constitute substantial evidence. We disagree.
       The rules for assessing the sufficiency of the evidence are well known. “[W]e
review the whole record to determine whether any rational trier of fact could have found
the essential elements of the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to support the verdict—i.e.,
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.] In applying
this test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. [Citation.] We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ the jury’s verdict. [Citation.]” (Zamudio, supra, 43 Cal.4th at
pp. 357-358.)
       It is well settled that a single eyewitness’s identification of the defendant as the
perpetrator may be sufficient to sustain a conviction. (People v. Boyer (2006) 38 Cal.4th
412, 480; see also Evid. Code, § 411 [“[e]xcept where additional evidence is required by
statute, the direct evidence of one witness who is entitled to full credit is sufficient for
proof of any fact”]; and see People v. Young (2005) 34 Cal.4th 1149, 1181 [“unless the


                                               7
testimony is physically impossible or inherently improbable, testimony of a single
witness is sufficient to support a conviction”].)
       Here, Baron identified defendant from the six-pack and at trial. Matosevic was
unable to identify defendant from the six-pack but did so in court. Salcedo was not
shown the six-pack but identified defendant in court. These three eyewitness
identifications constitute substantial evidence to support the convictions. As we shall
explain, we are not persuaded otherwise by defendant’s argument that these
identifications were unreliable under the circumstances.

B.     Identifications From the Photographic Lineup Were Not Unreliable

       Defendant concedes that trial counsel’s failure to object to the pretrial
identification procedure constitutes a forfeiture of the issue on appeal (People v. Elliot
(2012) 53 Cal.4th 535, 585-586), but urges us to consider the suggestive nature of the
lineup in analyzing the sufficiency of the evidence. He argues that Baron’s pretrial and
subsequent in-court identifications of defendant do not constitute substantial evidence
because defendant stood out as the only person in the six-pack depicted wearing a
jacket.5 We disagree.
       “ ‘Because human beings do not look exactly alike, differences are inevitable.
The question is whether anything caused defendant to “stand out” from the others in a
way that would suggest the witness should select him.’ [Citation.]” (People v. Gonzalez
(2006) 38 Cal.4th 932, 943.) In People v. DeSantis (1992) 2 Cal.4th 1198, 1222, our
Supreme Court held that a photographic lineup was not unduly suggestive where
witnesses described the perpetrator as wearing a red jacket and the defendant was the
only person in the lineup wearing a red shirt.
       Here, the witnesses said the perpetrator was wearing a black puffy jacket. In the
six-pack shown to Baron, five of the six people are wearing T-shirts of varying colors and

5     In a separate Petition for Habeas Corpus Relief, defendant argues that his trial
counsel was ineffective for failing to object to the photographic lineup. By separate order
we summarily deny defendant’s habeas petition.

                                              8
only defendant is wearing what appears to be a hooded jacket or sweatshirt.6 Under
DeSantis, the difference in clothing did not make defendant stand out in a way that
suggested the witnesses should select him; nor was evidence insufficient because of the
unreliability of the identification.

C.     The In-Court Identifications Were Not Inherently Unreliable

       Defendant contends none of the in-court identifications constitute substantial
evidence because the witnesses had little time to observe the perpetrator and the
procedure of having a witness identify the defendant who is seated at a table with counsel
is inherently suspect. In particular, he challenges Matosevic’s in-court identification on
the ground that she failed to identify him from the six-pack. We disagree.
       Defendant’s challenge to the in-court identifications based on the witnesses’
ability to observe the perpetrator involves issues of credibility, resolution of which fall
squarely within the jury’s province. (People v. Bento (1998) 65 Cal.App.4th 179, 193.)
Likewise, his challenge to the unreliable nature of the in-court identification process is a
matter that may be argued to the jury, but does not make the identification insufficient as
a matter of law. (People v. Breckenridge (1975) 52 Cal.App.3d 913, 935.) Finally, as to
Matosevic’s failure to identify defendant from the six-pack, it is well settled that the
failure to make an identification from a photograph goes to the weight of the in-court
identification, not its sufficiency. (People v. Prado (1982) 130 Cal.App.3d 669, 673,
overruled on other grounds by People v. Howard (1992) 1 Cal.4th 1132, 1175; see also
People v. Contreras (1993) 17 Cal.App.4th 813, 822-823 [witness’s failure to identify
defendant in photographic lineup does not render a subsequent in-court identification
inadmissible; weight to be given the identification under such circumstances is for the
jury to decide].)




6     A black and white photocopy of the six-pack is attached as Exhibit A to
defendant’s Petition for Habeas Corpus.

                                              9
                                    DISPOSITION

      The conviction on count 5 is reversed. In all other respects, the judgment is
affirmed.




                                                RUBIN, J.
WE CONCUR:




             BIGELOW, P. J.




             GRIMES, J.




                                           10
