NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

DETJEN, J.

Defendant Michael Timothy Kilpatrick II stands convicted, following a jury trial, of two counts of robbery involving the personal use of a firearm. (Pen. Code,1 §§ 212.5, subd. (c), 12022.53, subd. (b).) Sentenced to a total of 12 years in prison and ordered to pay various fees, fines, and assessments, he now appeals, raising claims of insufficient evidence and instructional error. We affirm.

FACTS

On May 17, 2009, Felicia Freeman and Felicitas Cruz were employed at Hollywood Video at Stockdale and California, Bakersfield. They were the only two present as the store's 10:00 p.m. closing time approached. Freeman was stocking soda, and Cruz was straightening the game section, when Freeman heard someone come in. The person approached her from behind and asked her for the money in the safe. When she turned around, she found herself face to face with a man whom she identified at trial as defendant. He was pointing a black handgun directly at her. Defendant was wearing all black and his face was covered with a bandana. He had on a black hoodie, so only his eyebrow and eyes and a very small portion of the bridge of his nose were visible. Freeman and defendant were two to three feet apart, and she viewed the visible portion of his face for five or 10 seconds.

Freeman called Cruz to the front of the store. Cruz saw a man, who was in front of the counter, holding Freeman, who was behind the counter, at gunpoint. The man, whom Cruz identified at trial as defendant, had a black handgun. He was wearing a black sweatshirt with the hood covering his head to about his eyebrow, and he had a dark-colored bandana over his face above his nose. Only his eyes were visible.

Cruz spoke to him, and he asked her to open the safe. He whispered the whole time he was telling her what he wanted her to do. He seemed nervous or excited to the point he was shaking. At one point, he said, "I'm sorry, but just give me this." Cruz was two to three feet from him when he was pointing the gun at her. Cruz looked into his face long enough to look at him, then look at the gun, then look at him, and then look at the gun. She focused on his eyebrow and his eyes. He had a very distinct look.

After Cruz opened the safe, she pulled out the "house bank," a tin box with a broken latch, and handed it to him. It was very heavy, as it contained $450 in coins and small-denomination bills. Cruz also gave him two extra register drawers that were inside the safe. He removed the cash from those drawers, put it in the box, and then left. He went north on Stockdale, toward the apartment complexes that were next to Vons and the video store.

Cruz immediately called 911. Bakersfield Police Officers Brown and Aleman were dispatched to the store at 9:36 p.m. Upon arrival five minutes or less later, they contacted Freeman and Cruz.2 Aleman spoke with Cruz, who described the suspect as a Hispanic male, 5 feet 10 inches tall, with a slim build, wearing a black hooded sweater, black pants, and a black bandana covering the lower half of his face. Freeman told Brown the robber was either White or very light-skinned Hispanic, about 5 feet 10 inches tall, and with a slim build.

The officers then responded to an apartment complex on Stockdale, just west of Hollywood Video, because a witness had seen the suspect in the general area of the apartment complex.3 Defendant was standing in the apartment complex parking lot. The metal box taken from Hollywood Video was found on the first floor roof of the apartment complex, just outside apartment 3, near the staircase leading to that apartment. Defendant was exiting apartment 3 when Aleman first saw him. Paper currency and coins were in the box.

That night, officers showed Freeman and Cruz three individuals at the apartment complex. Each was brought out one at a time. Defendant was one of them. Freeman recalled identifying the person she thought could be the suspect by the body build, but, because the individuals were standing farther away, she was not positive. Officer Brooks recalled Freeman saying she could not identify anyone who was in the showup.4 Freeman never identified defendant on the day of the robbery. Cruz similarly did not make a positive identification the night of the incident. Cruz recalled telling an officer there definitely were two whom it could not have been, and one she recognized as a customer. According to Brooks, Cruz said defendant appeared to be the robber, but she was not 100 percent sure.

When contacted by police, defendant was wearing a black shirt with blue stripes and blue writing, and blue jeans. He was six feet tall and 180 pounds. He was White and his eyes were blue. While at the apartment complex, Aleman also had contact with Vincent Kilpatrick. This individual was 5 feet 11 inches tall, weighed 145 pounds and had a slim build, and had brown eyes. In addition, Brown contacted Raymond Kilpatrick. He did not fit the description of the suspect. Apartment 3 was searched that night pursuant to Vincent Kilpatrick's consent. No clothing of evidentiary value or a gun or ammunition were found.

Defendant willingly accompanied Brown to the police station, where his fingerprints and a DNA sample were obtained. He was then released. Subsequently, defendant's left palm print, right palm print, and right middle fingerprint were found on the cash box. It was not possible to determine the age of the prints. Other prints without enough detail for comparison were also found on the box. Vincent Kilpatrick's fingerprints were also taken at the police station; according to the fingerprint expert, the fact his prints were not on the box did not necessarily mean he did not touch it.

Freeman positively identified defendant at the preliminary hearing, where defendant was the only person seated at counsel table who was wearing jail clothes. She identified him because of the "inset" of his eyes. He had a very distinct eyebrow and "inlay" of his eyes. She was certain of the identification. At trial, where she was also certain of the identification, she did not remember the color of the robber's eyes, but did recall the distinct eyebrow and the inside of his eyes, which seemed darker. She remembered testifying at the preliminary hearing that the robber's eyes could have been brown or hazel. She recalled his pupils being very big, although she did not remember this until after the preliminary hearing.

Cruz also identified defendant at the preliminary hearing. On that day, defendant was in jail clothes and was the only person sitting next to an attorney. Cruz knew who it was the moment she walked in. She believed that, on the day of the robbery, she had a conversation with one of the officers about the suspect's eyebrow, because it was the most predominant thing she could see. When she identified defendant at the preliminary hearing, she had a better view than when shown the individuals at the apartment complex. At trial, she was positive defendant was the robber.

DISCUSSION

I

SUFFICIENCY OF THE EVIDENCE

Defendant contends his convictions must be reversed for lack of substantial evidence he was the masked robber. We disagree.

The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Where the circumstances support the trier of fact's finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant's innocence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)

In the present case, both victims positively identified defendant at trial. "The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) In order for us to reject testimony believed by the trier of fact, the physical impossibility or falsity of the testimony must be apparent "without resorting to inferences or deductions." (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

No such inherent improbability, falsity, or physical impossibility appears in the identification testimony in the present case. Thus, it "`alone is sufficient to sustain the conviction[s].' [Citation.]" (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) "`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 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.]" (People v. Elliott (2012) 53 Cal.4th 535, 585.) "Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate." (People v. Allen (1985) 165 Cal.App.3d 616, 623, overruled on another ground in People v. Berry (1993) 17 Cal.App.4th 332, 338-339; accord, People v. Echevarria (1992) 11 Cal.App.4th 444, 453; see People v. Hill (1998) 17 Cal.4th 800, 849 [that eyewitness who identified defendant told police culprit was five feet four inches to five feet five inches tall, whereas defendant was 5 feet 10 inches tall, and another eyewitness testified defendant definitely was not the assailant, were "merely discrepancies in the evidence the jury considered and resolved against defendant"].)

"`Apropos the question of identity, to entitle a reviewing court to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.' [Citations.]" (People v. Mohamed (2011) 201 Cal.App.4th 515, 521.) Such is clearly not the situation here, especially when the existence of defendant's palm prints and a fingerprint on the cash box is considered. "Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant. [Citations.] The jury is entitled to draw its own inferences as to how the defendant's prints came to be on the [box] and when [citation] and to weigh the evidence and opinion of the fingerprint experts." (People v. Gardner (1969) 71 Cal.2d 843, 849.) Here, there was not simply a single fingerprint indicating someone touched an innocuous item at some unknown time. Rather, the existence of prints from both defendant's palms leads inexorably to the inference he held the box containing the proceeds of the robbery with both hands. Since there was no evidence he worked at the video store or that anyone other than store employees had lawful access to the box, the evidence of identity is actually quite strong.

Defendant contends, however, the People are judicially estopped from arguing that the eyewitness identifications provide substantial evidence. In this regard, defendant moved, before trial, for dismissal due to denial of his right to a speedy trial.5 In part, defendant argued the delay prejudiced his ability to prepare a defense, in that witnesses' fading memories compromised his ability to develop an alibi defense and locate and interview potential witnesses, including the victims, whose memories of detail were "suspect in light of the passage of time." In response, the trial prosecutor asserted, in pertinent part, that defendant could not establish actual prejudice, because:

The motion to dismiss was denied "[b]ased on the response filed by the People ...."

"`"`Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary.'" [Citation.] The doctrine applies when "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake." [Citations.]' [Citations.]" (People v. Castillo (2010) 49 Cal.4th 145, 155, italics omitted.)

The doctrine of judicial estoppel has only rarely, if ever, been applied against the prosecution in criminal cases. (People v. Watts (1999) 76 Cal.App.4th 1250, 1262.) It does not apply here, because the two positions asserted by the prosecution concerning the eyewitness identifications are not sufficiently inconsistent. (People v. Castillo, supra, 49 Cal.4th at p. 155; see New Hampshire v. Maine (2001) 532 U.S. 742, 750.) "[I]t is well established that, for the doctrine to apply, the seemingly conflicting positions `must be clearly inconsistent so that one necessarily excludes the other.' [Citation.]" (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 182, italics added.) Here, the prosecution's first position was not that the eyewitness identifications constituted no evidence or that they added nothing to the People's case; rather, the prosecutor took the position the fingerprint evidence was substantially more important and would be unaffected by the passage of time.

Even if we were to find the doctrine applicable, we would exercise our discretion not to apply it. Allowing the Attorney General now to point to the eyewitness identifications as part of the basis for her assertion the evidence is sufficient to sustain the convictions, does not, under the circumstances, either undermine the integrity of the judicial system or subject defendant to an unfair strategy.

Defendant relies on People v. Trevino (1985) 39 Cal.3d 667 (Trevino), disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1221, as support for his claim that with or without the eyewitness identifications, the evidence was insufficient. In that case, the People relied heavily on the testimony of one Mrs. Nyberg to show the presence of Rivas, Trevino's codefendant, at the location of the homicide at or about the time of death. Nyberg, however, was never able to positively identify Rivas as the second man; she described this person as tall and slender and having no mustache, while Rivas was not slender and had a mustache. In addition, Nyberg was mistaken with regard to how many photographic lineups she viewed, and identified someone other than Rivas in the single array she saw that contained Rivas's picture. Fingerprint evidence was also not substantially incriminating; Rivas's thumbprint was found on one of the unopened drawers in a dresser in the victim's bedroom, but the age of the print could not be determined and Rivas had previously been a guest in the victim's home. (Trevino, supra, at pp. 696-697.) The California Supreme Court concluded "[t]he highly speculative and equivocal identification testimony and the solitary fingerprint of some unknown vintage do not constitute evidence which is `reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (Id. at p. 697.)

Trevino clearly is distinguishable from the present case. Here, two eyewitnesses positively identified defendant at trial (and at the preliminary hearing) as the robber. At trial, they explained how they were able to make the identifications despite the fact most of the robber's face had been covered. Discrepancies in their descriptions of the robber, and their lack of positive identifications at the time of the live showup on the night of the robbery, were fully explored at trial and argued to the jury. Moreover, here, unlike in Trevino, there was no possible nonincriminating explanation for the presence of defendant's palm prints on the video store's cash box: Although the box was handled by multiple store employees, there was no evidence defendant had ever been in the store before, let alone that he had had legal access to the box on some former occasion. Taken together with defendant's proximity to the cash box a short time after the robbery, the eyewitness identifications and fingerprint evidence in the present case clearly "constitute evidence which is `reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (Trevino, supra, 39 Cal.3d at p. 697.) Defendant's claim to the contrary fails.

II

FLIGHT INSTRUCTION

Defendant contends the trial court erred by instructing the jury that it could consider the masked robber's flight in evaluating whether defendant was the perpetrator. We conclude any error was harmless.

A. Background

The People requested that the trial court instruct on flight, pursuant to CALCRIM No. 372. Defendant objected, claiming there was no evidence of flight, and pointing out that his motion in limine, to exclude any reference to the delay in the prosecution of this case, had been granted.6 After a brief argument concerning whether there was evidence of flight from the store to the apartment (as opposed to movement to a different state), the trial court took the matter under submission. It subsequently ruled the instruction was appropriate and would be given, noting that the instruction itself was limited to flight immediately after the crime was committed. Accordingly, pursuant to CALCRIM No. 372, jurors were told: "If the defendant fled immediately after the crime was committed, that conduct may tend to show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."

B. Analysis

"In general, a flight instruction `is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citations.] `"[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested."' [Citations.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)

Whenever the prosecution relies on evidence of a defendant's flight as tending to show guilt, an instruction on flight must be given. (§ 1127c.) "To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]" (People v. Bonilla (2007) 41 Cal.4th 313, 328.) The evidence of flight need not be uncontradicted. (People v. Richardson (2008) 43 Cal.4th 959, 1020.)

Defendant says the premise for giving a flight instruction was absent in his case, because flight of a defendant was not relied on as tending to show guilt. Only the identity of the perpetrator was in issue, defendant observes, and the prosecutor "never made the illogical argument that the masked robber's flight proved that [defendant] was the masked robber."

Appellate courts have held that "if identity is the only issue in a case, evidence of flight is irrelevant and the instruction is improper. [Citation.]" (People v. London (1988) 206 Cal.App.3d 896, 903.) This is so because "[t]he mere fact that the perpetrator fled from the immediate scene of the crime is immaterial in establishing the identity of the perpetrator. [Citation.]" (People v. Batey (1989) 213 Cal.App.3d 582, 587.) "Flight supports an inference that the actor was conscious of guilt. [Citation.] But that a certain person was observed fleeing from, say, the scene of a robbery and thereby manifested a consciousness of guilt is of no consequence unless the person fleeing was the defendant." (People v. London, supra, 206 Cal.App.3d at p. 903.)

The California Supreme Court has since stated that "[i]f there is evidence identifying the person who fled as the defendant, and if such evidence `is relied upon as tending to show guilt,' then it is proper to instruct on flight. [Citation.] `The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury's need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.' [Citation.]" (People v. Mason (1991) 52 Cal.3d 909, 943, fn. omitted; accord, People v. Abilez (2007) 41 Cal.4th 472, 521-522.) In People v. Elliott, supra, 53 Cal.4th at page 584, the high court rejected an argument the flight instruction was erroneously given "because the sole question for the jury was whether defendant was the perpetrator of the charged offenses and there was no evidence of flight by defendant apart from his identification as the perpetrator." Citing Mason's progeny, including Abilez, the court succinctly stated: "We have held to the contrary. [Citations.]" (People v. Elliott, supra, at p. 584.)

In the present case, there was no identification of defendant as the person who left the video store except by inference from his identification by the victims as the robber. (Compare People v. Elliott, supra, 53 Cal.4th at p. 584 [many witnesses identified defendant as person seen running, though they were not eyewitnesses to the actual crimes].) We need not decide whether the flight instruction was properly given under the circumstances, however, because any error was manifestly harmless. The instruction assumed neither that flight was established nor that defendant fled; rather, both existence and significance were left to the jury. (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183; People v. Crandell (1988) 46 Cal.3d 833, 870, overruled on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Guillebeau (1980) 107 Cal.App.3d 531, 546; McMillan v. Gomez (9th Cir. 1994) 19 F.3d 465, 469.) If jurors did not find defendant's flight was shown, "they would have disregarded the flight instruction as they were also instructed. [Citations.]" (People v. Richardson, supra, 43 Cal.4th at p. 1020.)7 Under the circumstances, and in light of the evidence, it is not reasonably probable a verdict more favorable to defendant would have been reached had CALCRIM No. 372 not been given. (People v. Crandell, supra, 46 Cal.3d at p. 870; People v. Silva (1988) 45 Cal.3d 604, 628.)

Defendant says, however, that the instruction could have led jurors to speculate there was flight concerning which they were not informed, especially since jurors were aware it took this case almost three years to get to trial. "Having heard the flight instruction," he argues, "the jurors had to have assumed that the case took so long because [defendant] had absconded from prosecution."

Considering the instructions as a whole, we see no reasonable likelihood the jury applied the instruction as defendant suggests. (See People v. Tate (2010) 49 Cal.4th 635, 696.) As given, CALCRIM No. 372 spoke of flight "immediately" after the crime was committed. Jurors were aware defendant was found at the apartment complex shortly after the robbery and that he was cooperative with police, neither of which suggest absconding. More importantly, jurors were told it was up to them to decide what happened "based on the evidence that has been presented ... in this trial." (Italics added.) They were also instructed: "You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence and anything else I told you to consider as evidence." (Italics added.)

"We presume the jurors followed this instruction: `[t]he crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.' [Citations.] Defendant has failed to persuade us that the instruction in this case was inadequate to prevent any possible prejudice from the alleged error." (People v. Smith (2007) 40 Cal.4th 483, 517-518; see also People v. Anjell (1979) 100 Cal.App.3d 189, 201-202, disapproved on another ground in People v. Mason, supra, 52 Cal.3d at p. 943, fn. 13.)

DISPOSITION

The judgment is affirmed.

GOMES, Acting P.J. and KANE, J., concurs.