No. D070848.

THE PEOPLE, Plaintiff and Respondent, v. JOHN AGAPITO LUNA, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.

Attorney(s) appearing for the Case

Laura R. Sheppard , under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra , Attorney General, Gerald A. Engler and Julie L. Garland , Assistant Attorney General, Steve Oetting and Daniel J. Hilton , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


After a first trial ended in a hung jury and mistrial, a jury in the second trial convicted John Agapito Luna of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 and battery with serious bodily injury (§ 243, subd. (d)). As to both offenses, the jury found that Luna personally inflicted great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)) and personally used a dangerous or deadly weapon (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)). In bifurcated proceedings, the trial court found that Luna had suffered three probation denial priors under section 1203, subdivision (e)(4), and one prison prior under section 667.5, subdivision (b). The court sentenced Luna to a term of six years in prison.

Luna appeals. He argues that the evidence at trial did not support his convictions. We disagree and affirm.


We state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts relevant to our analysis will be discussed in the following section.

On April 4, 2015, Mackinzie Amadon and several friends were at a bar in the Pacific Beach neighborhood of San Diego. At some point in the evening, Amadon set a bottle of beer on a table. Luna, who was also at the bar with friends, believed the table belonged to his group and removed Amadon's beer. Amadon followed Luna, and the two exchanged heated words about the table. Amadon took his beer and walked away. Luna continued to make angry remarks to Amadon. Amadon exchanged heated words with Luna's friend Christopher Lopez as well.

A short time later, three of Luna's friends, including Lopez, confronted Amadon. Amadon became angry and slammed his beer bottle on the table. Foam spilled out the top and hit some other people at the bar. An altercation ensued. Luna, who was about five feet away, threw a cocktail glass at Amadon. It shattered against Amadon's face, causing severe injuries. At the same time, Lopez punched Amadon in the face. The glass and the punch happened one after another, in rapid succession. Fighting between Luna's friends and Amadon's group continued until security guards broke it up. Police arrived soon afterwards.

Ashley Teixeria, a waitress at the bar, told a security guard she saw a person, later identified as Luna, throw a glass at Amadon. She had served cocktails in glasses to Luna and his group earlier in the evening. Police arrested Luna. When they told him he had been accused of throwing a glass at Amadon, Luna replied, "No, I wasn't drinking out of a glass. I was drinking like a cranberry vodka out of a plastic cup." A bar manager stated that cocktails are normally served in glasses, but plastic cups are available if a customer requests it.

At trial, Amadon's treating physician Christopher Wiesner testified that the glass that struck Amadon most likely broke when it hit his face; it was not already broken. Wiesner could not say for sure whether Amadon's injuries were the result of a glass thrown from a distance or from close by. He believed it was unlikely Amadon's injuries were caused by a thrown glass, but he was not sure. Wiesner testified, "Again, it's tough to know with certainty. But in my experience, if someone has a glass object thrown at them, it's less likely to break. Even if it does break, it's not likely to cause multiple, linear . . . lacerations in the same orientation. So I'd suspect he was struck with a glass object that was either broken or broke and that it cut him in multiple areas when it went against his face."

A security camera at the bar recorded video of the incident. The video and several still images were admitted into evidence at trial, but they did not clearly show the origin of the glass that hit Amadon.

The defense presented testimony by a witness from Luna's group at the bar. She had been friends with Luna for 10 years. She said she did not see Luna throw a glass at Amadon.


As noted, Luna claims the evidence at trial did not support his convictions. "We first observe that our role on appeal is a limited one. `The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see People v. Boatman (2013) 221 Cal.App.4th 1253, 1262.)

"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) "The standard for rejecting a witness's statements on this ground requires `"`either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences and deductions.'"'" (People v. Thompson (2010) 49 Cal.4th 79, 124 (Thompson).)

"The inherently improbable standard addresses the basic content of the testimony itself—i.e., could that have happened?—rather than the apparent credibility of the person testifying. Hence, the requirement that the improbability must be `inherent,' and the falsity apparent `without resorting to inferences or deductions.' [Citation.] In other words, the challenged evidence must be improbable `"on its face"' [citation], and thus we do not compare it to other evidence (except, perhaps, certain universally accepted and judicially noticeable facts). The only question is: Does it seem possible that what the witness claimed to have happened actually happened?" (People v. Ennis (2010) 190 Cal.App.4th 721, 729 (Ennis).)

"Consequently, `[c]onflicts 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 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.]' [Citation.] `Testimony may be rejected only when it is inherently improbable or incredible, i.e., "`unbelievable per se,'" physically impossible or "`wholly unacceptable to reasonable minds.'"'" (Ennis, supra, 190 Cal.App.4th at p. 729.)

Luna claims the testimony of Ashley Teixeria, the only witness to see Luna throw the glass at Amadon, should be rejected as inherently improbable. Viewed as a whole, Teixeria testified that she saw Luna throw a cocktail glass at Amadon in a crowded, somewhat dimly lit bar as she was standing several feet away. The cocktail glass broke against Amadon's face, causing severe injuries.

We conclude there is nothing unbelievable per se, physically impossible, or otherwise wholly unacceptable to reasonable minds about Teixeria's story. It was not a "miracle throw," as Luna contends. Although the bar was loud and dimly lit, with flashing strobe lights, Teixeria and other servers could still do their jobs, navigate the crowd, and communicate with customers. Under these circumstances, it is not unreasonable to believe that Luna could aim and throw a cocktail glass at Amadon or that Teixeria could see and hear the events she described at trial. And, even if we were to accept Luna's claim that it is unlikely that a cocktail glass would break when thrown against a person's face from a distance, it is neither physically impossible nor so vanishingly rare to be wholly unacceptable to reasonable minds. Glass does break against hard objects such as a person's skull or facial bones, and Luna makes no argument that the cocktail glass here was somehow unbreakable. It was therefore not unreasonable for the jury to believe the cocktail glass broke against Amadon's face after Luna threw it.

Luna points to several minor alleged inconsistencies in Teixeria's statements, such as whether she actually saw the glass strike Amadon (or only saw the immediate aftermath) or whether Luna was sitting (or standing) when he threw the glass. But these minor inconsistencies, even if present, go to Teixeria's credibility, not the inherent improbability of her testimony. We may not reweigh the credibility of her testimony on appeal. (People v. Friend (2009) 47 Cal.4th 1, 41 ["The impeachment arguments that defendant repeats against [the witness] involve simple conflicts in the evidence that were for the jury to resolve."].)

Luna also argues that Teixeria's testimony was improbable when compared with other evidence at trial, such as the security camera video, Amadon's prior statements regarding Luna's involvement, and Wiesner's testimony regarding the potential causes of Amadon's injuries. But Luna identifies potential conflicts in the evidence, which were the exclusive province of the jury to resolve. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 161-162; People v. Young, supra, 34 Cal.4th at p. 1181.) On appeal, we may not reweigh Teixeria's credibility against the credibility of other evidence introduced at trial. (People v. Maury (2003) 30 Cal.4th 342, 403 ["We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence."].) The test is whether Teixeria's testimony was inherently improbable, i.e., implausible on its face, not implausible when compared with other evidence. (Ennis, supra, 190 Cal.App.4th at p. 725.)

Luna claims that our Supreme Court's opinion in Thompson, supra, 49 Cal.4th 79, mandates that we must compare Teixeria's testimony to other evidence in order to determine whether her testimony is inherently improbable. Luna misinterprets Thompson, which expresses the exact opposite holding. The defendant in Thompson claimed that a witness's testimony was physically impossible in light of other evidence, such as the angle of bullet wounds in a murder victim's body and the location where the body was found. (Id. at p. 124.) As the Supreme Court explained, "defendant's contention that [the witness's] testimony was inherently incredible depends on the asserted inconsistencies that defendant argues exist between [the witness's] testimony and other evidence presented at trial." (Id. at pp. 124-125.) It rejected defendant's argument out-of-hand as inconsistent with the substantial evidence standard of review: "We reject defendant's attempt to reargue the evidence on appeal and reiterate that `it is not a proper appellate function to reassess the credibility of the witnesses.'" (Id. at p. 125.) Here, too, we may not compare Teixeria's testimony against other evidence at trial to determine whether it should be rejected as inherently improbable.2

In sum, Teixeria's testimony is not inherently improbable, i.e., it is not unbelievable per se, physically impossible, or wholly unacceptable to reasonable minds. Teixeria saw Luna throw a cocktail glass with such force that it broke against Amadon's face, causing serious injuries. Logic and common sense tell us that such a scenario is eminently plausible. The jury was therefore entitled to rely on Teixeria's testimony and convict Luna of the charged offenses. As a reviewing court, and not the finder of fact, our analysis ends there.


The judgment is affirmed.

NARES, Acting P. J. and AARON, J., concurs.


1. Further statutory references are to the Penal Code.
2. We have reviewed the security camera video and still photos allegedly showing the incident. Although they do not show the cocktail glass being thrown, and given their perspective Luna is not depicted, because of the low quality of the video evidence they do not foreclose the possibility that Amadon was hit by a cocktail glass thrown by Luna. Thus, although it is not necessary to our decision, we conclude that even if the jury credited this evidence—which it was not required to do—it could still have reasonably believed Teixeria's testimony.


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