THE PEOPLE v. MYRNA LOPEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. MYRNA L. LOPEZ, Defendant and Appellant.

B223751

Decided: March 24, 2011

Murray A. Rosenberg for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Myrna L. Lopez appeals from the judgment entered upon her jury conviction of four counts of second degree robbery, one count of receiving stolen property, and one count of attempted second degree robbery.   Defendant challenges the sufficiency of the evidence supporting her conviction of second degree robbery in count 3. She also contends the trial court abused its discretion when it declined to dismiss a prior strike conviction for purposes of sentencing her under the “Three Strikes” law.

We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Lopez and her co-defendant Latascha Bulmer were charged with crimes committed during a one-week crime spree in September 2009.   Because Lopez challenges the sufficiency of the evidence only as to count 3, we summarize the facts relevant as to that count.

Lopez and Bulmer already had committed two other robberies when they robbed Shelley Warren at about 2:00 p.m. on September 8. Bulmer tried to pull Warren's bag off her shoulder, the two struggled, and Warren's prescription glasses broke during the struggle.   Bulmer took off with the bag, and Warren chased her across the street.   Bulmer got into an SUV driven by Lopez.   Warren went to the passenger side of the SUV and tried to get her bag out of the car.   The SUV drove away.   In a photographic lineup, Warren identified Bulmer, but she could not identify the driver of the SUV. She identified Lopez as the driver at the preliminary hearing and at trial.   On September 14, after a reported burglary, the police arrested Lopez.   Property from the burglarized home and other stolen property, including Warren's Costco membership card, was recovered from the car Lopez had driven right before she was arrested.

After her jury conviction, Lopez admitted 1994 and 2005 felony convictions and moved to strike the earlier one.1  Her motion was denied and she was sentenced to a total of 161 years to life, which included six consecutive 25-years-to-life terms under Penal Code 2 sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), with additional 10 years for two prior serious felonies under sections 667, subdivision (a), and one year for a prior prison term under 667.5, subdivision (b).

She timely appeals.

DISCUSSION

I

The testimony of a single witness is sufficient for the proof of any fact unless it is “physically impossible or inherently improbable.”  (People v. Scott (1978) 21 Cal.3d 284, 296.)   Any weaknesses in identification testimony are to be evaluated by the jury.  (People v. Hill (1998) 17 Cal.4th 800, 849.)   On a claim of insufficient evidence, we review the record, in the light most favorable to the judgment, for substantial evidence that would support defendant's guilt beyond a reasonable doubt.  (People v. Snow (2003)

30 Cal.4th 43, 66.)   We do not reweigh the evidence or redetermine witness credibility.  (People v. Richardson (2008) 43 Cal.4th 959, 1030-1031.)

Lopez challenges the sufficiency of the evidence on count 3, which is based on Warren's identification of her as the driver of the getaway car.   Specifically, Lopez claims that, because Warren's prescription glasses had broken during her struggle with Bulmer and because Warren had been unable to identify Lopez from the photo lineup, her in-court identification was inherently improbable.   Warren testified that, although she could not “read close-up” and was beginning “not to be able to see far away,” she did not wear her prescription glasses all the time and could see without them.   She testified that she made eye contact with the driver of the SUV and described her as having “a very distinct face, eyes” and “very small shoulders and head.”   Because Warren had come close to the SUV and could see without her prescription glasses, her identification of Lopez was not physically impossible.   Warren explained that she was unable to identify Lopez in the photo lineup because Lopez had worn a hat at the time of the robbery and Warren was unaware that Lopez had no hair.   Warren's explanation was reasonable, and her claimed memory of the driver's face and physical features support the inference that her in-court identification of Lopez was not inherently improbable.   Any weaknesses in the identification were to be argued to and weighed by the jury.

Warren's identification of Lopez is supported by other evidence.   Warren's Costco card was found in a car Lopez had driven just before her arrest.   Additionally, the other charged robberies involved two suspects and a similarly described SUV. The victims in those robberies identified Lopez from a six-pack, even though there was some confusion about her gender.   Count 3 is supported by substantial evidence in the record.

II

Under section 1385, subdivision (a), a trial court may order an action dismissed in furtherance of justice.   For purposes of sentencing under the Three Strikes law, the trial court's discretion under this section includes striking an allegation of a prior serious or violent felony conviction.   (People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 504.)   In doing so, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.”  (People v. Williams (1998) 17 Cal.4th 148, 161.)   The court's decision is reviewed for abuse of discretion.   (People v. Carmony (2004) 33 Cal.4th 367, 376.)

Lopez asserts that the trial court did not consider striking her 1994 attempted robbery conviction because it harbored a “prohibited antipathy” toward her.   This assertion is contrary to the record.   The trial court explicitly considered whether Lopez was outside the spirit of the Three Strikes law and concluded that she was not.   The court based its conclusion on Lopez's extensive criminal history dating back to 1991 and the nature and number of her present offenses.   In balancing the relevant factors, the court legitimately exercised its discretion.3

Lopez relies on People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop ) to argue that her 1994 attempted robbery conviction should have been stricken as too remote.   Her reliance on Bishop is misplaced.   The reviewing court in that case affirmed an order striking two priors.  (Bishop, at pp. 1250-1251.)   From its holding, it does not follow that refusing to strike priors would be an abuse of discretion.  (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.)   Nor did the court in Bishop consider whether the defendant was outside the spirit of the Three Strikes law.  (People v. Strong (2001) 87 Cal.App.4th 328, 342.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Lopez admitted the allegation of a 1994 conviction under Penal Code section 211 (robbery).   In the motion to strike this allegation, and on appeal, the conviction is characterized as one of attempted robbery.   The conviction does not appear on Lopez's probation report.   The discrepancy is insignificant for purposes of the Three Strikes law because both robbery and attempted robbery are serious felonies.  (See Pen.Code §§ 667, subd. (d), 1192.7, subd. (c)(19) & (39).).  FN1. Lopez admitted the allegation of a 1994 conviction under Penal Code section 211 (robbery).   In the motion to strike this allegation, and on appeal, the conviction is characterized as one of attempted robbery.   The conviction does not appear on Lopez's probation report.   The discrepancy is insignificant for purposes of the Three Strikes law because both robbery and attempted robbery are serious felonies.  (See Pen.Code §§ 667, subd. (d), 1192.7, subd. (c)(19) & (39).)

FN2. All subsequent statutory references are to the Penal Code..  FN2. All subsequent statutory references are to the Penal Code.

FN3. Lopez's probation report generally supports the court's conclusion that Lopez has had an extensive criminal history, and it indicates that she has not been free of crime at least since her 2005 robbery conviction, for which she received a prison sentence.   But the probation report shows no convictions between 1994, when Lopez was placed on probation, and 2005;  it reflects no criminal activity between 1996 and 2005.   The court believed that there was no extensive period when Lopez was out of prison and free of crime.   It did not address the defense's assertion that Lopez went without a criminal conviction for 11 years after 1994.   Lopez does not challenge on appeal the court's apparent misreading of the probation report.   The lack of criminal convictions over an 11-year period may be relevant to prior-prison-term enhancement under section 667.5, subdivision (a), but it is not a factor under the Three Strikes law.  (See § 667, subd. (c)(3) [“The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence”].).  FN3. Lopez's probation report generally supports the court's conclusion that Lopez has had an extensive criminal history, and it indicates that she has not been free of crime at least since her 2005 robbery conviction, for which she received a prison sentence.   But the probation report shows no convictions between 1994, when Lopez was placed on probation, and 2005;  it reflects no criminal activity between 1996 and 2005.   The court believed that there was no extensive period when Lopez was out of prison and free of crime.   It did not address the defense's assertion that Lopez went without a criminal conviction for 11 years after 1994.   Lopez does not challenge on appeal the court's apparent misreading of the probation report.   The lack of criminal convictions over an 11-year period may be relevant to prior-prison-term enhancement under section 667.5, subdivision (a), but it is not a factor under the Three Strikes law.  (See § 667, subd. (c)(3) [“The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence”].)

WILLHITE, J. SUZUKAWA, J.