Filed 10/20/14 P. v. Valencia CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B253431

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA402808)
         v.

CLAUDIA VALENCIA,

         Defendant and Appellant.




THE COURT:*

         Defendant Claudia Valencia appeals from her conviction by jury of attempted
murder in violation of Penal Code sections 664 and 187, subdivision (a).1 The jury found
that a principal personally and intentionally discharged a firearm causing great bodily
injury to Mack Lewis within the meaning of section 12022.53, subdivisions (d) and
(e)(1). The jury further found that the offense was committed for the benefit of, at the
direction of, and in association with a criminal street gang with the specific intent to

*
         BOREN, P. J., ASHMANN-GERST, J., FERNS, J.†

†     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
1        All further references to statutes are to the Penal Code unless stated otherwise.
promote, further, and assist in criminal conduct by gang members pursuant to section
186.22, subdivision (b)(1)(C).
       Defendant admitted having suffered a 2011 conviction for robbery in violation of
section 211 as a strike under sections 1170.12, subdivisions (a) through (d) and 667,
subdivisions (b) through (i). After striking defendant’s strike conviction, the trial court
sentenced defendant to the low term of five years for the attempted murder and 25 years
to life for the firearm enhancement. The court imposed a consecutive five years for
defendant’s prior conviction of a serious felony pursuant to section 667,
subdivision (a)(1). The court did not impose sentence on the gang allegation.
(§ 12022.53, subd. (e)(2).) Defendant’s total sentence is 35 years to life. The court
granted defendant 464 actual days of sentence credit and 70 days of conduct credits.
       We appointed counsel to represent defendant on this appeal. After examination of
the record, counsel filed an “Opening Brief” in which she stated she had failed to find
any arguable issues. On June 25, 2014, we informed defendant that she had 30 days in
which to file a supplemental brief containing any issues she wished this court to consider.
On July 25, 2014, defendant filed a brief in which she argues that her state and federal
constitutional rights were violated because: (1) her conviction for attempted murder is
based on insufficient evidence; and (2) the trial judge erred in denying her motion to
suppress the in-court eyewitness identification.
                                          FACTS
       Defendant was tried along with codefendants Juan Villegas and Fernando Rosales
for a shooting that occurred in the early morning hours of September 18, 2012. Before
the shooting, Villegas and Rosales were in a red Ford Aerostar van in the area of Western
Avenue and Florence Avenue near a Burger Palace restaurant. Rosales approached
Jerrek Wooden and Kameyah Simms and offered Simms $20 for sexual favors. Simms
handed the money to Wooden. After talking to Rosales, Simms left with Wooden and
did not provide any services to Rosales. Villegas and Rosales began following Wooden
and Simms. Eventually Wooden and Rosales engaged in a fistfight in which Wooden
“split [Rosales’s] face.” Rosales was angry and got in the van driven by Villegas, and the

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following continued. Wooden and Simms ran away and climbed over a wall to the right
of the Burger Palace and crossed an alley.2 They entered an abandoned building where
victim Lewis was sleeping.
       At approximately 3:25 a.m., Officer David Tello and his partner, Officer Ethan
Sillers, were in their patrol car at the intersection of Western and Florence Avenues when
they heard five or six gunshots. Officer Tello drove in the direction of the shots and saw
Lewis coming over the wall from the alley. He was screaming and bleeding from
multiple gunshot wounds. Lewis ran toward the police car and collapsed. Within 10 to
20 seconds, Officers Tello and Sillers both observed Villegas and defendant jump over
the wall at about the same place where Lewis had come over. The officers also saw
Rosales start to climb over the wall, but he stopped and ran north in the alley after
looking in the officers’ direction.
       Officer Tello noticed a red van parked nearby. Villegas, holding a blue steel
revolver, walked around the van to the driver’s side. The officers saw defendant go
toward the passenger side. She looked in the direction of the officers and stopped as if
she did not know what to do. Villegas got in the driver’s seat of the van and drove away.
When the van left, defendant walked to a bus stop on Western Avenue. Officer Tello
approached her and called her over. Defendant complied, and she was handcuffed and
put in the patrol car. After an air unit responded to the area, the van was spotted. It
eventually stopped and was surrounded by police units. Villegas and Rosales were
arrested.
       Wooden testified that he and Simms were in the abandoned house for about 45
minutes when he heard a vehicle in the parking lot slam on its brakes. He heard a door
slide open, and he heard someone say “Where that Mayate at?” and “18th Street.”
Wooden could hear people jumping into the alley. Lewis got up and went to the door,
and at that moment someone kicked it in. Wooden and Simms heard someone say,
“What’s going on?” and “It’s not me.” They then heard around six shots.        Wooden and


2      Wooden testified that another woman was with them at that point.
                                              3
Simms hid while the intruders walked around the building. Wooden heard them leave
and go in the alley, where the only way out was to jump the wall. He then heard a car
speeding off. Wooden identified Villegas and Rosales in court. He was unable to
identify defendant and did not see her on the night of the incident. Simms identified
Villegas in court and in the field showup as the driver of the van. She identified Rosales
in the field showup.
       Lewis had used crack cocaine and marijuana during the evening before the
shooting. While asleep in the abandoned building, he heard a loud crashing noise and
woke to find someone standing over him. When Lewis stood up, he saw two more
people. In court, Lewis said that one of them was defendant, and she was approximately
20 feet from him. He saw that the door and the side of the wall had been kicked in.
When he saw guns waving at him, he said, “Whatever it is, I didn’t do it.” He was able to
run around the people toward the opening. He ran to the wall and got over it, but he
heard gunfire and knew he had been hit. At trial, Lewis identified Rosales and defendant
as the ones with guns.
       Lewis testified that as he lay wounded on the street, his head was facing the
Burger Palace, and he saw people coming over the wall and running to a red minivan
parked against the wall. Lewis saw the red van leave with no lights on. Lewis’s memory
was refreshed with his preliminary hearing testimony, where he had identified defendant
in court. He testified at that hearing that, as he was lying on the ground, he saw
defendant standing by the red minivan. At trial, he then recalled he saw defendant in the
parking lot while he was on the ground. He recognized her as being one of the three
people in the house when the guns were pointed at him.
       Within two days of the shooting, Officer Medina showed Lewis some
photographs. Lewis circled two photographs of males (Villegas and Rosales) because he
recognized those two faces. He told Officer Medina he would not be able to identify the
third person. He knew it was a female. Two months later, at the preliminary hearing, he
identified defendant in court. Lewis testified at trial that he did not identify defendant


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merely because she was the third defendant sitting at the table but rather because he
actually recognized her. He remembered her face and her build when he saw her in court.
                                        DISCUSSION
I. Sufficiency of the Evidence
       Defendant contends the evidence is insufficient to prove she was a principal, aider
and abettor, or coconspirator in this case.3 According to defendant, the case boils down
to a cross-racial identification under poor lighting conditions by a habitual drug user who
had only a few seconds to identify three individuals while in a highly stressed state.
       A single witness’s testimony is sufficient to support a conviction, unless it is
physically impossible or inherently improbable. (Evid. Code, § 411; People v. Young
(2005) 34 Cal.4th 1149, 1181; People v. Scott (1978) 21 Cal.3d 284, 296.) “Conflicts
and even testimony which is subject to justifiable suspicion do not justify the reversal of
a judgment, for it is the exclusive province of the [trier of fact] . . . 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.” (People v. Maury (2003) 30 Cal.4th 342, 403.)
        An “‘aider and abettor is a person who, “acting with (1) knowledge of the
unlawful purpose of the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime.”’ [Citation.]” (People
v. Jurado (2006) 38 Cal.4th 72, 136.) Section 31 provides, in pertinent part: “All
persons concerned in the commission of a crime . . . whether they directly commit the act
constituting the offense, or aid and abet in its commission, or, not being present, have
advised and encouraged its commission,” are principals.
       One who knows another’s unlawful purpose and intentionally aids, promotes,
encourages, or instigates the crime is guilty as an aider and abettor of both the offense he

3      The prosecutor proceeded under the theory that, even if defendant was not the
shooter, she was guilty as an aider and abettor and/or coconspirator under the theory of
natural and probable consequences.
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or she intended to facilitate or encourage (the target crime) as well as any other crime
committed by the person he or she aids and abets that is the natural and probable
consequence of the target crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259, 260-
261.)
        “A conspiracy is an agreement between two or more persons, with specific intent,
to achieve an unlawful objective, coupled with an overt act by one of the conspirators to
further the conspiracy.” (People v. Gann (2011) 193 Cal.App.4th 994, 1005.) “[T]he
conspiracy may be shown by circumstantial evidence and the agreement may be inferred
from the conduct of the defendants mutually carrying out a common purpose in violation
of a penal statute.” (Id. at pp. 1005-1006.)
        It is true that Lewis was a drug addict, who was caught in a highly stressful
situation, and that events happened very quickly. At trial, he often did not recall his prior
testimony when presented with transcripts, but Lewis was firm in stating that he
immediately recognized defendant when he saw her in court. It is true that at the
preliminary hearing Lewis said he could not tell if the suspect who held the gun was male
or female, and that at trial he did not recall saying that. He denied that the reason he
identified her was because he saw her in court with the other defendants. When counsel
insisted on asking Lewis when he saw defendant for the first time, Lewis replied, “The
night of the shooting.” Lewis said he saw the faces of the three intruders as he was
running out of the abandoned building. The bright lights from the Burger Palace were
shining into the building. Lewis also saw defendant standing near the van after he
collapsed on the ground. Lewis acknowledged that prior to seeing defendant in court, he
believed he had not identified her to anyone in law enforcement and, to his recollection,
he did not see any photographs of her. Officer Medina testified that, prior to showing
Lewis a set of photographs (a flip-up) containing defendant’s picture, Lewis told the
officer he could not identify the third person. As a result, Officer Medina did not
proceed.
        In addition to Lewis’s testimony and its impeachment on several points by defense
counsel, the jury heard the testimony of Officers Tello and Sillers, who provided

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corroboration of Lewis’s identifications. Officers Tello and Sillers both saw defendant
climbing over the wall with Villegas, who was carrying a firearm. They saw defendant
move to the passenger’s side of the van as Villegas went to the driver’s side, but Villegas
drove off. Officer Tello said he had no difficulty observing the faces of the three
defendants he identified in court.
       Finally, the jury heard that Rosales was an admitted member of the 18th Street
criminal street gang, and defendant was known to Officer Espinosa, the gang expert, as
an 18th Street gang member. Her clique was ongoing on the date of the shooting. The
jury saw photos of defendant showing her tattoos and making gang signs. Officer
Espinosa testified that the gang member at the scene who did not shoot was there to
verify the act was actually carried out and by whom. Gangs require proof that a member
put in work. Significantly, the address defendant gave police upon being arrested was
within two miles of the shooting scene.
       The discrepancies between Lewis’s trial testimony, his preliminary hearing
testimony, and his statements to police merely presented the jury with a credibility
determination to resolve. As noted, the jury is the exclusive judge of the witnesses’
credibility, and the jury here clearly believed Lewis as well as Officers Tello and Sillers.
(People v. Maury, supra, 30 Cal.4th at p. 403.) The jury was fully instructed on the
theories of aiding and abetting and natural and probable consequences in addition to
conspiracy. The jury would have noted that Lewis was accurate in his identifications of
Villegas and Rosales in the photo arrays he was shown. The jury was given standard
guidelines in assessing the credibility of witnesses in CALJIC No. 2.20.4 Although

4       CALJIC No. 2.20 was read to the jury as follows: “Every person who testifies
under oath is a witness. You are the sole judges of the believability of a witness and the
weight to be given the testimony of each witness. In determining the believability of a
witness, you may consider anything that has a tendency reasonably to prove or disprove
the truthfulness of the testimony of the witness, including, but not limited to, any of the
following: The extent of the opportunity or ability of the witness to see or hear or
otherwise become aware of any matter about which the witness testified; The ability of
the witness to remember or to communicate any matter about which the witness has
testified; The character and quality of that testimony; The demeanor and manner of the
                                              7
defendant’s counsel impugned Lewis’s veracity and impartiality by, inter alia, contrasting
his demeanor while being questioned by the prosecution with his questioning by defense
counsel, the jury disagreed. To the extent defendant is arguing this court should reweigh
the jury’s credibility determination, it is clear that is not a proper function for this court.
(People v. White (1995) 32 Cal.App.4th 638, 642, disapproved on another point in People
v. Harrison (2013) 57 Cal.4th 1211, 1230.)
       There was sufficient evidence for a reasonable jury to reach the conclusion that
defendant conspired with and aided Villegas and Rosales with the goal of attacking
Wooden (who was a Crips gang member) and Simms for taking the money and for
“disrespecting” Rosales. In the process, Lewis was shot several times. Having
concluded that substantial evidence supports defendant’s conviction, we find without
merit her argument that her state and federal constitutional rights were violated. (See
People v. Young, supra, 34 Cal.4th at p. 1184.)
II. Denial of Motion to Suppress
       Defendant contends the trial court erred in denying her pretrial motion to suppress
Lewis’s in-court identification as the product of unduly suggestive law enforcement
procedures. At Lewis’s preliminary hearing, he admitted under cross-examination that he
had been in court on two prior occasions and had seen the defendants’ faces when they
walked into court. He said he did not recall if he had identified a photograph of
defendant, and he did not know if the first time he saw her was in the courtroom. At trial,
Lewis acknowledged that he did not recall giving any descriptions to police officers of
the perpetrators involved in the incident. He did not recall telling Officer Medina that he
could not recognize the third person involved. He again admitted he was in the


witness while testifying; The existence or nonexistence of a bias, interest, or other
motive; The existence or nonexistence of any fact testified to by the witness; The attitude
of the witness towards this action or toward the giving of testimony; A statement
previously made by the witness that is consistent or inconsistent with his or her
testimony; The witness’s prior conviction of a felony; Past criminal conduct of a witness
amounting to a moral turpitude; in other words, a misdemeanor amounting to moral
turpitude; Whether the witness is testifying under a grant of immunity.”
                                                8
courtroom twice when the preliminary hearing was continued. He saw the defendant
being brought from the lockup. He said he had not identified defendant to anyone nor
seen photographs of defendant before that time. Lewis vehemently denied, however, that
the reason he identified defendant is because he saw her in court with the other
defendants.
       “[F]or a witness identification procedure to violate the due process clauses, the
state must, at the threshold, improperly suggest something to the witness— i.e., it must,
wittingly or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa
(1998) 19 Cal.4th 353, 413.) “‘A procedure is unfair which suggests in advance of
identification by the witness the identity of the person suspected by the police.’
[Citation.]” (Ibid.) In the instant case, there was no pretrial identification procedure.
There was no photographic lineup or array, no field showup of defendant, and no live
lineup. There is no evidence anyone pointed out defendant to Lewis at the prior court
proceedings. There was no admission by Lewis that the fact he saw the three defendants
come into court when his case was announced on two prior occasions helped him make
the identification. (See, e.g., People v. Sandoval (1977) 70 Cal.App.3d 73, 85.)
       Defendant’s argument amounts to a complaint that Lewis was not asked to identify
defendant before appearing in court with the defendants and, as a result, the in-court
identification at the preliminary hearing when defendant appeared with her two
codefendants was unduly suggestive. As stated in People v. Rodrigues (1994) 8 Cal.4th
1060, “[i]nsofar as defendant contends that an in-court identification not preceded by a
lineup is impermissibly suggestive and prejudicial as a matter of law, he is wrong.” (Id.
at p. 1155; accord, People v. Williams (1997) 16 Cal.4th 153, 236.) “When an
eyewitness has been subjected to undue suggestion, the factfinder must nonetheless be
allowed to hear and evaluate his identification testimony unless the ‘“‘totality of the
circumstances’”’ suggests ‘“a very substantial likelihood of irreparable
misidentification.”’ [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 168.) “‘Short of
that point, such evidence is for the jury to weigh. . . . [E]vidence with some element of
untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that

                                              9
they cannot measure intelligently the weight of identification testimony that has some
questionable feature.’ [Citation].” (Id. at p. 170.)
       We do not believe there was a likelihood of irreparable misidentification under the
circumstances of this case. “[I]t has long been recognized that ‘[i]n the case of in-court
identifications not preceded by a lineup . . . , the weaknesses, if any, are directly apparent
at the trial itself and can be argued to the court and jury without the necessity of
depending on an attempt to picture a past lineup by words alone.’ [Citations.]” (People
v. Rodrigues, supra, 8 Cal.4th at p. 1155.) Here, defense counsel thoroughly cross-
examined Lewis about his statements to Officer Medina and his presence in the
courtroom when defendant appeared from the lockup with the other two defendants, and
counsel included these issues in his closing argument. The attorneys for Villegas and
Rosales also grilled Lewis on his ability to see and his state of mind. Defendant’s
counsel argued that the case was “a credibility case,” referring specifically to the
credibility of Lewis as well as that of “other witnesses.” He referred to “their ability to
see, their ability to tell the truth, and their attitude towards this particular action.” He
characterized Lewis as a long-time cocaine addict and noted his criminal history. He
criticized Lewis’s demeanor, calling him “a pleaser” who tried to please the prosecution
in this case. Counsel asserted that Lewis’s identification of defendant was the “opposite
of [] reliable.” In addition, the jury instruction quoted in the previous section listed many
of the adverse conditions defendant cites and provided guidance for the jury in assessing
the reliability of Lewis’s ability to identify defendant.
       Given the thorough cross-examination to which Lewis was subjected by three
defense attorneys and counsels’ arguments to the jury, we believe the trial court did not
err or violate defendant’s state and federal constitutional rights by denying defendant’s
motion to exclude her in-court identification by Lewis.
       In addition, we have examined the entire record, and we are satisfied that
defendant’s attorney has fully complied with his responsibilities and that no arguable
issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)


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                            DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




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