Filed 5/21/15 P. v. Mooney CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. JAMES RAY MOONEY III, Defendant and Appellant. F068343 (Super. Ct. No. CRM024295)

OPINION

APPEAL from a judgment of the Superi or Court of Merced County. Marc A. Garcia, Judge. Valerie G. Wass, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, A ssistant Attorney Gene ral, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOooJames Ray Mooney III, appeals from a judgment of conviction entered after a jury found him guilty of a ttempted murder, assault with a firear m, and possession of a firearm by a felon. Based on those convictions, and upon multiple enha ncement allegations2. which were found to be true, Mooney was sentenced to an aggregate term of 34 years to life in prison. He now asserts claims of insufficient evidence and sentencing error. Mooney’s challenge to the sufficiency of the evidence is meritless. With regard to sentencing, we conclude the trial court erre d by imposing prior prison term enhancements
on each count of conviction. Such enhancemen ts do not attach to particular counts and may only be applied once. Th e unauthorized enhancements will be stricken, but the aggregate sentence remains the same since th e trial court stayed the enhanced terms imposed under the subordinate counts. The ab stract of judgment shall be amended to reflect the appropriate sentence and to correct certain clerical errors which the parties have identified. Subject to these m odifications, we affirm the judgment.
FACTUAL AND PROCED URAL BACKGROUND Mooney was charged by information w ith attempted murder (Pen. Code, 1 §§ 664, 187; Count 1), attempted robbery (§§ 664, 211; Count 2), assa ult with a firearm (§ 245, subd. (a)(2); Count 3), and possession of a firearm by a fe lon (§ 29800, subd. (a)(1); Count 4). Enhancement allegations were atta ched to these charge s for unlawful firearm use and infliction of great bodily injury (§ § 12022.5, subd. (a); 12022.7, subd. (a); 12022.53, subd. (d)). It was further allege d that Mooney had se rved two prior prison
terms within the meani ng of section 667.5. All offenses were alleged to have occurre d on August 23, 2012 . The case went to trial in May 2013. We summa rize the evidence presented at trial in the light most favorable to the prosecution. ( People v. Sotomayor (1996) 47 Cal.App.4th 382, 386.) Sergio Higareda sustained a gunshot wound while working at an auto parts store in Merced. The shooting happened in front of two of his co -workers, Emily Espinoza and Luis Gallardo. The perpetrator entered th e store, produced a small pistol from the backpack he was carrying, then pointed the gun at Mr. Higareda, who was standing

1 All statutory references are to the Penal Code unless otherwise indicated.3. approximately 15 feet away behind a service counter. The victim re cognized the man as a past customer and did not believe the gun was real due to its size. He made a sarcastic comment and gesture at the sight of the weap on. The gunman reacted by firing a bullet into Mr. Higareda’s chest. Witnesses reported seeing two men loitering in front of the store prior to the shooting. The owner of a nearby business esta blishment helped poli ce to identify one of these individuals as Michael Burgess. Wh en detained for questioning, Mr. Burgess denied any wrongdoing but ackn owledged being near the st ore during the relevant time period and having a brief encounter with tw o people whom he knew as “Smoke” and “Little Mainny.” A search for these names in a law enforcement database revealed that “Little Mainny” was an alias or moniker us ed by James Mooney, w ho was listed in the system as one of Mr. Burg ess’s known associates. Detectives included Mooney’s picture am ong six images used in a photographic lineup which was shown to the victim and his store manager, Ms. Espinoza, approximately one week after the shooting. The victim picked Mooney out of the lineup, and subsequently identified him as the shooter at a preliminary hearing and again at trial. Ms. Espinoza did not select anyone from the li neup and was unable to identify Mooney in court. The other eyewitness, Mr. Gallardo, cl aimed that he never sa w the shooter’s face. When examined at trial, the victim expr essed certainty regarding his identification of Mooney as the shooter. The bright lighti ng inside of the store had allowed him to see the shooter’s face clearly, and he looked the man directly in th e eyes. On both direct and cross-examination, the victim testified to having no doubt that the defendant was the person who shot him. The defense case was based on a genera l theory of third party culpability. Following his arrest, Mooney ad mitted that he had walked by the auto parts store on the night of the incident but denied any involveme nt in the shooting. He recalled having a
brief conversation outside of the store w ith Michael Burgess, who at the time was4. accompanied by a person known as Smoke and someone else named “Manny” (not to be
confused with his own nick name, “Mainny,” which was s hort for “maniac”). Defense counsel argued that the shooter was probably one of the other men seen in front of the store and emphasized the lack of any forensic evidence to tie Moone y to the crime. A psychologist named Robert Showmer, Ph.D., was called to testif y about his opinions regarding the lack of reliability in phot ographic lineup procedures and in-court
identifications. The jury acquitted Mooney of attempted ro bbery and all lesser included offenses under Count 2, but found him guilty as char ged on the remaining counts. The firearm enhancements and great bodily injury allegati ons were found to be true. A bifurcated
bench trial was held to determ ine the prior prison term allega tions, which were also found
to be true. Mooney was sentenced as follows: As to Co unt 1, the middle term of seven years for attempted murder plus a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d), furt her enhanced by consecutive one-year terms under section 667.5 for each of his two prior pr ison terms. As to Count 3, a stayed sentence (§ 654) of 12 years calculated using the middle term of th ree years for assault with a firearm, plus consecutive terms of four years pursuant to section 12022.5, subdivision (a), and three years pursuant to section 12022 .7, subdivision (a), further enhanced by consecutive oneyear terms under section 667.5. As to Count 4, a concurrent two-year term for possession of a firearm by a felon, plus stayed one-year terms for each of the prison priors. A timely notice of appeal was filed on November 6, 2013.
DISCUSSION Sufficiency of the Evidence Mooney presents three arguments concerning the sufficiency of the evidence. Full reversal of the judgment is sought on grou nds that the eyewitness identification testimony was unreliable. In the alternative, he s ubmits that the attemp ted murder conviction5. cannot stand because there was no evidence of an inte nt to kill. Mooney further contends
“there was no evidence that [he] possessed a firearm,” wh ich we will interpret as a challenge to the Count 4 verdict. His arguments are untenable.
The standard of review for a claim of in sufficient evidence is deferential to the verdict. ( People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) We do not substitute our own interpretation of the record in plac e of the jury’s determinations regarding witness credibility and disput ed issues of fact. ( People v. Brown (2014) 59 Cal.4th 86, 106; People v. Jones (1990) 51 Cal.3d 294, 314.) Instead , we review the entire record in the light most favorable to the judgment to de termine whether there is evidence that is reasonable, credible, and of so lid value such that a rational juror could find the defendant guilty beyond a reasonable doubt. ( People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
It is well settled that a si ngle eyewitness’s identifica tion of a suspect as the perpetrator of a crime is suffici ent to sustain a conviction. ( People v. Boyer (2006) 38 Cal.4th 412, 480; People v. Anderson (2001) 25 Cal.4th 543, 573-575; Evid. Code, § 411 [“Except where additional evidence is required by statut e, the direct evidence of
one witness who is entitled to fu ll credit is sufficient for pr oof of any fact.”].) “‘The strength or weakness of the identification, th e incompatibility of and discrepancies in the testimony, if there were any, the uncertaint y of recollection, an d the qualification of identity and lack of positiven ess in testimony are matters which go to the weight of the evidence and the credibility of the witnesses, and ar e for the observation and consideration, and directed solely to the attention of the jury in the first instance. . . .’” ( People v. Mohamed (2011) 201 Cal.App.4th 515, 522.) For a reviewing court to set aside a jury’s finding of guilt on the basis of a questionable identific ation, “‘the evidence of identity must be so weak as to constitute practical ly no evidence at all.’” ( Id . at p. 521.) The evidence of identity in this case cannot be characterized as insufficient. The victim unequivocally testified that Mooney was the person who shot him. A second6. eyewitness, Ms. Espinoza, stopped short of positively identifying Mooney in court but agreed that he looked like th e shooter and described the rese mblance as “pretty dead on.” Furthermore, the points and contentions which Mooney raises in his attempt to discredit the identification were argued at length by hi s trial counsel. When such issues are explored at trial and the eyewitness identif ication testimony is ne vertheless believed by the trier of fact, the identification will be ac cepted on appeal as supported by substantial evidence. (See People v. Young (2005) 34 Cal.4th 1149, 1181 [“unless the testimony is physically impossible or inherently improbab le, testimony of a single witness is sufficient to support a conviction”]; People v. Elwood (1988) 199 Cal.Ap p.3d 1365, 1372 [“Purported weaknesses in identification te stimony of a single eyewitness are to be evaluated by the jury.”].)
We turn next to the elemen t of intent in Count 1. Attempted murder requires the specific intent to kill, which may be inferred from a defendant’s acts and the circumstances of the crime. ( People v. Smith (2005) 37 Cal.4th 733, 741.) Here, it was uncontroverted that the perpet rator (whom the jury determined to be Mooney) fired a gunshot at Sergio Higareda from a distance of approximately 15 feet, causing a bullet to lodge in the victim’s chest. “‘The act of firing toward a vic tim at a close, but not point blank, range “in a manner that could have in flicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill ....”’” ( Id. at p. 741.) “‘“The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusi on that he lacked the animus to kill in the
first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship ne cessarily establish a less cu lpable state of mind.’” ( Ibid .) These principles compel us to reject Mooney’s claim of insu fficient evidence with respect to the required mental state. We also reject the notion that Mooney should have been acq uitted of unlawful firearm possession because the gun used in th e shooting was never found. The elements7. of the offense are conviction of a felony an d ownership or knowi ng possession, custody,
or control of a firearm. (§ 29800, subdiv ision (a)(1); People v. Osuna (2014) 225 Cal.App.4th 1020, 1027.) Firearm posse ssion and use may be established through circumstantial evidence. (See, e.g. People v. Miranda (2011) 192 Cal.App.4th 398, 410- 411; People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436 -1437.) Thus, the evidence which supports Mooney’s convictions under Coun ts 1 and 3 is also sufficient to prove that he possessed a firearm for purposes of Count 4. Imposition of Prior Pris on Term Enhancements Section 667.5, subdivision (b) requires that a consecutive one-year enhancement be given for each prior separate prison term se rved by the defendant for any felony. The statute falls within a category of enhancements pertaining to the nature of the offender, as opposed to the nature of any predicate offense. ( People v. Tassell (1984) 36 Cal.3d 77, 90 ( Tassell ), overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401; see § 1170.1, subd. (a).) Enhanc ements of the former variety do not attach to particular counts and are applied only once as the final step in calculating the total sentence. ( Tassell , supra , 36 Cal.3d at p. 90.) Mooney argues, and respondent concedes, that the trial court erred by imposing enhancements pursuant to sec tion 667.5 for each count of co nviction. The concession is appropriate. Accordingly, we will modify the judgment to remove any reference to particular counts with respect to the prior prison term enha ncements and to vacate the portion of the sentence which or dered a stay of those enhancem ents as to Counts 3 and 4. Errors in the Abstract of Judgment
Errors in an abstract of judgment should be corrected by a reviewing court when detected on appeal. ( People v. Scott (2012) 203 Cal.App.4th 1303 , 1324.) The parties have identified two such errors. First, the ab stract incorrectly stat es that the enhanced term of 25 years to life for Count 1 wa s imposed pursuant to section 12022.53, subdivision (a) instead of su bdivision (d). Second, the ab stract shows the concurrent8. two-year term imposed under Count 4 as being stayed, whic h is not accurate. The trial court only stayed imposition of the prior pris on term enhancement for that count. Both
errors must be corrected.
DISPOSITION The judgment is modified as follow s: The two one-year prior prison term enhancements imposed pursuant to section 667. 5 as to Counts 3 and 4 are vacated. The remaining section 667.5 enhancements totali ng two years are imposed without reference to any particular count. The aggregate sent ence remains 34 years to life in prison. The trial court is directed to prepare an amende d abstract of judgment in accordance with
these modifications and to forward a certif ied copy of same to the Department of
Corrections and Rehabilitation. The amended abstract should fu rther reflect that the term of 25 years to life for Coun t 1 was imposed pursuant to section 12022.53, subdivision (d), and that imposition of th e concurrent two-year sentence fo r Count 4 is not stayed. As so modified, and in all other respects, the j udgment is affirmed.

_____________________ GOMES, J. WE CONCUR:

_____________________ CORNELL, Acting P.J.

_____________________ SMITH, J.