Filed 11/13/15 P. v. Zapien CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B253696
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA062827)
v.
JOSE ZAPIEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
George Gonzales-Lomeli, Judge. Affirmed.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Defendant and appellant Jose Zapien was charged with two counts of special
circumstance premeditated murder and 12 counts of attempted premeditated murder. The
counts arose out of five separate, gang-related incidents, one in 2004 and four in 2006.
A jury found defendant guilty of all counts and found true gun and gang allegations. On
appeal, defendant contends that the 2004 and the 2006 counts should not have been
joined for trial. He also contends, among other things, that photographic lineups were
impermissibly suggestive, that the testimony of his eyewitness identification expert was
improperly limited, and that there was insufficient evidence to convict him of two counts.
We reject all contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
From September 28, 2004 to December 27, 2006, five separate incidents of
shootings occurred in Santa Monica. It was the prosecution’s theory of the case that the
shootings arose from violence between two rival gangs, Santa Monica 13 (SM13), to
which the majority of victims belonged, and Sotel, to which defendant belonged.
A. The September 28, 2004 incident (counts 1, 2, and 3).
At approximately 4:15 p.m. on September 28, 2004, Ricardo Nunez and Guillermo
Castell were outside an apartment on Virginia in Santa Monica. Omar Nunez, Ricardo’s
brother, was also outside, on a street-level balcony. “[S]ome people” had followed
Castell. A car, driven by someone in an orange wig and glasses, drove by two or three
times. The car’s passenger was a male Hispanic, 18-to-23 years old, with short or shaved
black hair. Ricardo heard the driver say pull out a gun. Someone from the car yelled,
“ ‘West Side Sotel, fuck Smacka.’ ” “Smacka” is a derogatory term for SM13. Shots
were fired.1 Broken glass cut Ricardo’s lip.
1
Fourteen expended cartridges were recovered from the scene.
2
Atilio Polio was parking his car on Virginia when he saw “two guys in a car, one
guy with a wig and makeup driving the car.” The passenger was Hispanic, 18-to-20 years
old.
Two days after the shooting, Ricardo was shown five sets of photographic six
packs from which he identified defendant: “ ‘I believe he was the guy that shot at me,
same look, same hair style.’ ” Ricardo told a detective that “ ‘this one [defendant] looks
like the passenger.’ ” Omar also identified defendant from photographic six packs:
“ ‘This looks like the person who shot at us.’ ” Omar recognized defendant because
defendant grinned at Omar as he drove by.
Neither Ricardo nor Omar was asked to identify defendant at the preliminary
hearing. Neither could identify defendant at trial.
B. The February 28, 2006 shooting (counts 3, 4, and 5).
On the evening of February 28, 2006, friends Michael Arceo, Tony Velasquez,
and Eddie Lopez were in front of a liquor store on Pico and 26th in Santa Monica when
gun shots were fired. Looking back as he ran, Arceo saw a person wearing a brown “rag”
that covered his face and a black hoodie that covered his head.2 The shooter was tall and
“medium size[d].”
Before the shooting, Velasquez saw a tall, skinny guy wearing “a beanie, glasses,
and a [brown] rag.” The rag was wrapped around the man’s face, from nose to bottom.3
The glasses were large, square, plastic-framed sunglasses. The man pointed a gun at
them and said, “ ‘Sotel Trece.’ ” He fired the gun four to five times. Velasquz and Arceo
were uninjured. Lopez was killed.4
Anne Gesling was at the nearby theatre when she heard two-to-three gunshots and
saw two young men, one wearing a hooded sweatshirt, running down Pico.
2
At the preliminary hearing, Arceo said he saw “ ‘strictly the eyes.’ ”
3
It was dark outside and the person stood approximately 37 feet from Velasquez.
4
Lopez was 15 years old.
3
The night of the shooting, Arceo was unable to make an identification, and he told
officers he couldn’t identify the person if seen again. But, a year later, on January 4,
2007, Arceo identified defendant from a photographic six pack in position 5: “ ‘I believe
this is the guy that shot at me and Eddie.’ ”5 Velasquez could not identify anyone from
six packs.
At the preliminary hearing, Arceo testified that he saw the shooter’s eyes and
“three dots.” Arceo and Velasquez were not asked at the preliminary hearing to identify
defendant. At trial Arceo did not recall seeing three dots. Arceo and Velasquez did not
identify defendant at trial.
C. The July 9, 2006 shooting (counts 13 and 14).
On July 9, 2006, Krizna Ayala and Benny Arroyo were in a parked car in an alley
near 1911 Euclid in Santa Monica. The alley was tagged with “RIP Boo Boo” and “RIP
Limps,” members of SM13. A small car drove up from behind them. Ayala saw the
driver and a front passenger, who had a gun. Arroyo shoved Ayala down. Multiple shots
were fired at Ayala and Arroyo, but they were not hit. Ayala thought that the passenger
was the shooter.
Two months later, on September 13, 2006, Ayala identified from a photographic
six pack two people she thought might be the driver and the shooter. Ayala was shown
another photographic six pack in January 2007. She “pretty quickly” identified
defendant: “ ‘This looks like the guy that shot at me.’ ” She “only really saw [the
shooter’s] eyes,” and she identified defendant because “the eyeballs still look the same.”6
She could not identify defendant at trial, although he looked like the person she identified
as the shooter.
5
Defendant was in the six pack because “several people” told the investigating
officer that “word on the street” was a Sotel gang member by the name of Youngster or
Junior was involved.
6
From another photographic six pack she identified John Carrillo (Wino) as the
driver.
4
Arroyo testified but denied, among other things, being in the car that day and
knowing of SM13. But he previously told officers that if he was forced to go to court he
would say “[B]lack people did it.” “Well the thing is if I go to court and they make me
go to court I’m going to help that dude out. I know he’s guilty. I know what it is.
I already know the whole background. I’m going to say it was black people. So if he
wants to take me I’m going to actually back the dude up because I can’t jeopardize my
family.”
D. The October 21, 2006 shooting (counts 10, 11, and 12).
On the evening of October 21, 2006, Brittney Milan was walking near 2711 Pico
Boulevard in Santa Monica. People, “maybe” three, were walking 10 to 15 feet ahead of
her. A “maybe” black car was going west on Pico. The car’s window was down, the
car’s inside light was on, and the music “was turned down.” There were “[l]ike, four”
people in the car, two in front and two in back, and they were laughing. The front
passenger was Hispanic, “heavy, maybe bulky,” with short black hair, and young. He
wore a hoodie. He had three dots under his left eye.
When the car passed Milan, she saw sparks from the front passenger side, and she
heard three or four gunshots. The front passenger was the shooter because he had
“something out the window.” Milan was shot in the leg. Milan was 15 feet from the
shooter and she got a good look at him.
At the scene, Officer Russell Grimmond spoke to Juan Bonilla, who said he was
with Milan and “Kanisha” the day Milan was shot. Bonilla told an officer he was
walking with his friend, Jose Trejo,7 when he heard shots. Bonilla was uncooperative
with the police and would not elaborate. Bonilla used to be from SM13.8
7
Juan Bonilla testified but Trejo did not testify.
8
Juan Bonilla was Arroyo’s brother-in-law. Hector Bonilla (Limpy) was Bonilla’s
cousin.
5
At the beginning of January 2007, Milan was shown photographs but she didn’t
want to talk at the time. But, on January 25, 2007, Milan identified defendant as the
shooter from a photographic six pack. She wrote, “ ‘He was in the car that I was shot
from.’ ” At trial, Milan identified defendant as the shooter.9
E. The December 27, 2006 shooting (counts 7, 8, and 9).
On December 27, 2006, William Crishon was with his brother, Miguel Angel
Martin.10 The brothers and Abel Jimenez were walking past Virginia Park at 23rd and
Pico in Santa Monica when a car with at least two people in it pulled up. The passenger
asked, “ ‘Are you from Smacks?’ ” or “ ‘Where are the Smacks at?’ ” At that time,
Crishon and Martin hung out with SM13. Offended, Crishon walked toward the car and
the passenger repeated, “ ‘Are you guys Smacks?’ ” The passenger fired a pistol at
Crishon. Martin was shot and killed. The shooter/passenger wore a “pink fright wig”
and had a tattoo of three dots on his face. He was Hispanic, 17-to-early 20s, “chunky,”
and clean shaven. Jimenez told an officer he got a good look at the shooter and could
identify him.
On January 4, 2007, Crishon identified defendant as the shooter from a
photographic nine-pack. Jimenez also identified defendant as the shooter from a
photographic nine-pack: “This looks like the guy that shot at us on 12-27-06.”11 Crishon
identified defendant at trial as the shooter. Jimenez, however, could not identify
defendant as the shooter at trial.
On January 12, 2007, Jimenez was at the LAX courthouse when he saw defendant
in the lobby.12 Scared, Jimenez called Officer Lewis and reported that he saw the
shooter.
9
About two years before trial, Milan’s friend told her that people knew her name
and that she should be quiet.
10
Crishon dated Milan, although it is unclear when.
11
He studied the photographs for a long time before making his selection.
12
The parties stipulated that defendant was at the courthouse that day.
6
F. Gang evidence.
The SM13 gang claims the entire city of Santa Monica, particularly the Pico
neighborhood. Virginia Park is their main hangout. In 2005, Jonathan Hernandez (Boo-
Boo) and Hector Bonilla (Limpy), both SM13 members, were murdered. The majority of
victims in this case were SM13 gang members at the time of the shootings: Castell (Lil
Evil); Martin (Bootsy); Velasquez (Clumsy); Arroyo (Vago); Juan Bonilla (Loony); 13
Crishon (Shady);14 and Jimenez (Yogi). Ayala was an SM13 associate, and she was
married to Limpy. Ricardo and Omar Nunez were members of CWSK, a tagging crew.
Arceo was a member of Kansas Street Posse, a tagging crew, some of whose members
eventually became SM13.
Sotel is one of SM13’s rivals. Defendant has been a Sotel gang member since at
least 2004 and was a shot caller. In 2005, Sotel 13 gang member Jose Castillo
(“Raccoon”) was murdered by SM13. From 2005-2006, the rivalry between SM13 and
Sotel was “active”; it “seemed like there was an incident every week.” Sotel uses the
color brown.
Gangs have their own “code of conduct,” and they distribute their own style of
justice. For a gang member, “[b]eing a snitch is the cardinal sin.” A gang member who
testifies would be labeled a snitch, even by his or her own gang.
The People’s gang expert, based on hypotheticals mirroring the facts of each
incident, opined that the crimes were committed for the benefit of and in association with
a criminal street gang.
G. Defense eyewitness expert.
Dr. Kathy Pezdek, a professor of cognitive science and an experimental
psychologist, specializes in eyewitness memory and identification. Memory doesn’t
work like a video camera. Instead, memory is a three-step process: (1) the “perception
13
Juan Bonilla’s wife was also a member of SM13, and his sister had a child with
Arroyo.
14
Crishon was SM13 in 2006, but he has since turned his life around.
7
phase,” which is the ability to perceive a person clearly; (2) the “storage phase,” which is
how long after an event the person’s memory is assessed and under what conditions; and
(3) the “test phase,” which is the procedures used to test eyewitness memory.
Factors that affect the accuracy and reliability of eyewitness identification are:
(1) Exposure time. This refers to how long an eyewitness looks at the perpetrator’s face.
When an eyewitness looks at a person briefly, the witness is more likely to misidentify
the person and they’re less likely to identify the correct person. (2) Distraction. This
refers to whatever else is going on during the time of exposure; for example, whether
there is another perpetrator or a nearby car. (3) Weapon focus. When a weapon is
present, people tend to focus on it rather than the face of the person holding the weapon.
(4) Cross-race identification. People are more accurate identifying people of the same
race or ethnicity. (5) Disguise. To the extent anything covered part of the suspect’s face,
this decreases the chance of a correct identification later. This is especially true when the
upper part of the face is disguised by, for example, sunglasses, baseball caps, hoods or
wigs. “Ironically, disguises to the lower part of the face, like a bandana, hamper
identification less.” (6) Delay in time. The longer you wait between observation and the
test of what you observed, the less reliable is memory, because memory declines over
time. There is not a significant correlation between a witness’s confidence in their
identification and accuracy.
“Suggestibility of memory” is how “post-event information” can change memory;
for example, if a witness briefly observes someone at the scene of the crime and later sees
a suspect at a lineup, then that post-event exposure can “suggestively influence their
memory for who they thought they saw at the scene of the crime.”
H. Defendant’s alibi.
Noah Avalos is the vice president of field operations for Sentinel, which provides
“[e]lectronic monitoring, court monitoring, probation services, G.P.S. monitoring.”
Avalos works in the monitoring unit. The “unit calls in signals,” “at specific intervals or
when the participant leaves, enters, or unplugs the device. [¶] And then anything that is
deemed an exception by the probation department is generated for an operator, and that
8
technician operator is then contacting either the residence or the probation department,
depending on what needs to be done with that equipment.”
In 2006, defendant had a transmitter placed on his ankle, and a receiver was put in
his home. “Any time that that person, or that ankle unit, leaves that area, then it would
report an away status.” The unit calls in a report every four hours but checks every
17 seconds if the ankle bracelet is within the accepted range of 150 feet of the
transponder. Based on Avalos’s review of documents concerning monitoring covering
July 2 through July 30, 2006, there was no indication the ankle bracelet was tampered
with or that the ankle bracelet was outside the range of the home monitoring unit. Entries
for July 9, 2006 did not show that the ankle unit was tampered with or that defendant
went outside the range of the transponder.
There are, however, ways to remove an ankle bracelet, and such information is
readily available if googled. One way to remove it is “[p]utting weight in your leg,
stretching it down your leg, lubricating it with . . . olive oil, Vaseline, and slipping it
off[.]”
II. Procedural background.
Two informations were filed alleging attempted murder and/or murder against
defendant, the first arising out the 2004 shootings and the second arising out of the 2006
shootings. The trial court granted the People’s motion to consolidate the cases.
A jury, on November 12, 2013, found defendant guilty as follows:
September 28, 2004 shootings. Counts 1, 2, and 3, the attempted
premeditated murders (Pen. Code, §§ 187, 664)15 of Castell, Ricardo
Nunez, and Omar Nunez, respectively.
February 28, 2006 shootings. Count 4, the premeditated murder of Eddie
Lopez, and counts 5 and 6, the attempted premeditated murders of
Velasquez and Arceo.
15
All undesignated statutory references are to the Penal Code.
9
December 27, 2006 shootings. Count 7, the premeditated murder of
Martin, and counts 8 and 9, the attempted premeditated murders of Jimenez
and Crishon.
October 21, 2006 shootings. Counts 10, 11, and 12, the attempted
premeditated murders of Milan, Juan Bonilla, and Trejo.
July 9, 2006 shootings. Counts 13 and 14, the attempted premeditated
murders of Ayala and Arroyo.
The jury found true gang allegations as to all counts (§ 186.22, subd. (b)(1(C)). As to all
attempted murder counts except count 10 (Milan), the jury found true personal gun use
allegations under section 12022.53, subdivisions (b) and (c). As to the Milan16 and
murder counts, the jury found true personal gun use allegations under section 12022.53,
subdivisions (b), (c), and (d). As to the murder counts, the jury found true multiple
murder and gang special circumstance allegations (§ 190.2, subd. (a)(3), (22)).
On January 9, 2014, defendant was sentenced to life without the possibility of
parole on count 7, the murder of Martin, plus 25 years to life for the firearm
enhancement. The trial court sentenced him, on counts 8 and 9, to a consecutive 15 years
to life each plus 20 years to life for the firearm enhancement. On counts 1-3, 5-6, and 10-
14, he was sentenced concurrently on each to 15 years to life plus 20 years to life for the
firearm enhancement. On count 4, the murder of Lopez, he was sentenced to a
concurrent term of 25 years to life plus 25 years to life for the firearm enhancement. His
total term was life without the possibility of parole plus 95 years to life.
DISCUSSION
I. Joinder of the 2004 and 2006 shootings for trial did not deny defendant due
process and a fair trial.
The 2004 and 2006 shootings were filed as separate cases. The trial court granted
the People’s motion to consolidate them on the grounds that evidence as to motive and
intent was cross-admissible, the crimes were of the same class, and there was no showing
16
Milan was shot in the leg.
10
that adding the 2004 counts prejudiced defendant.17 Defendant now contends that the
court abused its discretion by failing to sever the counts for trial and that the prejudicial
effect of the joinder denied him due process. We disagree.
The law favors prefers consolidation of charges. (People v. Soper (2009)
45 Cal.4th 759, 771-772; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220; People
v. Manriquez (2005) 37 Cal.4th 547, 574.) Section 954 therefore provides that an
“accusatory pleading may charge two or more different offenses connected together in
their commission, or different statements of the same offense or two or more different
offenses of the same class of crimes or offenses, under separate counts, and if two or
more accusatory pleadings are filed in such cases in the same court, the court may order
them to be consolidated.” (§ 954; see also Soper, at pp. 769, 771.) If these statutory
requirements for joinder are met, a court nonetheless may, in its discretion, order counts
to be tried separately. (§ 954; People v. Thomas (2012) 53 Cal.4th 771, 798.) A trial
court’s ruling is reviewed for abuse of discretion, and, to establish such abuse, the
defendant must make a clear showing of prejudice. (Thomas, at p. 798; Soper, at
pp. 773-774; Williams v. Superior Court (1984) 36 Cal.3d 441, 447, superseded by
statute on other grounds, as stated in Alcala, at p. 1229, fn. 19.)
To determine whether a trial court abused its discretion, we consider, first, the
cross-admissibility of evidence in hypothetical separate trials.18 (People v. Soper, supra,
45 Cal.4th at p. 774.) Cross-admissibility of evidence alone is normally sufficient to
dispel any suggestion of prejudice. (Id. at p. 775; Alcala v. Superior Court, supra,
43 Cal.4th at p. 1221.) If the evidence would not be cross-admissible, we consider
“ ‘whether the benefits of [the] joinder were sufficiently substantial to outweigh the
possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration
of the evidence of defendant’s guilt of each set of offenses.’ [Citations.] In making that
17
The defense made no motion to sever any of the 2006 counts from each other.
18
Our review of a trial court’s ruling on a severance motion is based on the record as
it existed at the time of the ruling. (People v. McKinnon (2011) 52 Cal.4th 610, 630.)
11
assessment, we consider . . . : (1) whether some of the charges are particularly likely to
inflame the jury against the defendant; (2) whether a weak case has been joined with a
strong case or another weak case so that the totality of the evidence may alter the
outcome as to some or all of the charges; or (3) whether one of the charges (but not
another) is a capital offense, or the joinder of the charges converts the matter into a
capital case.”19 (Soper, at p. 775.)
Here, the statutory requirements of section 954 were met. The 2004 counts and
the 2006 counts were of the same class of assaultive crimes; namely, murder and
attempted murder. (People v. Miller (1990) 50 Cal.3d 954, 987.) Because the statutory
requirements of joinder were met, defendant, to establish that the court nonetheless
abused its discretion, has the high burden of showing clear prejudice.
This burden has not been met. Gang evidence would have been cross-admissible
on the issues of motive and the identity of the shooter, the latter of which was a key
disputed issue. SM13 and Sotel (defendant’s gang) were rivals, with that rivalry
becoming especially intense in 2005 and 2006. Almost all victims were SM13 or part of
a tagging crew. The one victim who arguably was not associated with SM13 was Milan,
who nonetheless was walking near SM13 members Juan Bonilla and Trejo when she was
shot.20 Also, the driver of the car in the September 28, 2004 counts wore an orange wig
and glasses. The shooter in the December 27, 2006 counts wore a pink fright wig. The
use of a distinctive wig tended to establish defendant’s involvement in both shootings.
(Compare Williams v. Superior Court, supra, 36 Cal.3d at p. 450 [very little similarity
existed between two gang shootings occurring nine months apart to support joinder].)
Even if we agreed there was no cross-admissibility of evidence, joinder would still
have been appropriate. (See generally § 954.1; Alcala v. Superior Court, supra,
43 Cal.4th at p. 1222 [absence of cross-admissibility alone is insufficient to establish
19
The third factor is not at issue.
20
Milan also dated the victim of count 9, Crishon, although it is not clear when they
dated.
12
prejudice].) The benefits of joinder did not outweigh any possible prejudice from the
“spill-over” effect of other crimes evidence. No one incident was more inflammatory
than another. Rather, all charges arose from the same set of facts, basic and generic in
the sense that they were gang-related drive-by shootings. The primary identifications all
were made from photographic line ups. Although defendant argues that some
identifications were weak because, for example, no witness to the September 28, 2004
shooting identified him in court, 21 for each shooting, including the September 28 one,
defendant was identified as the shooter from photographic lineups. Although defendant
argues he had an “ironclad alibi” to the July 9, 2006 shooting, based on evidence he was
on home arrest, that alibi, as we discuss post, was not “ironclad.” There was evidence
that ankle monitoring bracelets, such as the one defendant wore, can be tampered with.
No one of the five incidents was therefore particularly stronger or weaker than the other.
We therefore conclude that joinder was appropriate under section 954 and that
defendant has failed to make a clear showing consolidation prejudiced him.
II. The photographic lineups are not unduly suggestive.
Before trial, defendant moved to suppress Arceo’s, Ayala’s, Crishon’s, and
Jimenez’s identifications from photographic lineups, on the ground that defendant was
the only person in the lineup with three dots under one eye.22 The trial court denied the
motion, finding that the lineups were not impermissibly suggestive and, in any event, the
identifications were reliable.23
21
Although defendant decries the lack of in-court identifications, defendant’s own
expert witness, Dr. Pezdek, cast doubt on the virtue of such in-court identifications.
22
Arceo testified at the preliminary hearing that the shooter had three dots near his
eye. Crishon and Milan testified at trial that the shooter had three dots.
23
In denying the motion, the court noted that nothing before it suggested that the
police, when they put the lineups together, had information the suspect had such a tattoo.
13
To determine “whether the admission of identification evidence violates a
defendant’s right to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the circumstances,
taking into account such factors as the opportunity of the witness to view the suspect at
the time of the offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty demonstrated
at the time of the identification, and the lapse of time between the offense and the
identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989; see also Manson v.
Brathwaite (1977) 432 U.S. 98, 106-114.) “The question is not whether there were
differences between the lineup participants, but ‘whether anything caused defendant to
“stand out” from the others in a way that would suggest the witness should select him.’ ”
(People v. Avila (2009) 46 Cal.4th 680, 698; Cunningham, at p. 990.) An identification
procedure is sufficiently neutral where the subjects are “ ‘similar in age, complexion,
physical features and build . . .’ [citation].” (People v. Leung (1992) 5 Cal.App.4th 482,
500; see generally People v. Johnson (2010) 183 Cal.App.4th 253, 271-272.) “The
defendant bears the burden of demonstrating the existence of an unreliable identification
procedure.” (Cunningham, at p. 989.) “[C]onvictions based on eyewitness identification
at trial following a pretrial identification by photograph will be set aside on that ground
only if the photographic identification procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v.
United States (1968) 390 U.S. 377, 384; accord, Cunningham, at p. 990.)
We have examined all photographic lineups, including ones in which defendant
has a three dot tattoo (People exhibits 44, 78, and 79).24 In each lineup, all men appear to
be of the same age: young and in their 20s. All look Hispanic. All have short or very
closely cropped-to-bald dark hair. In exhibit 44, the men have a similar build, slightly
24
People’s exhibits 78 (shown to Crishon) and 79 (shown to Jimenez) are the same
lineup.
14
husky. In exhibits 78 and 79, the photographs are more closely cropped, revealing less of
their build. True, in each lineup, only defendant has a facial tattoo, three dots near his
left eye. But the tattoo does not cause defendant to “stand out” in such a way as to
suggest to the victims that they should select him. The tattoo is barely visible in
exhibit 44. The tattoo is more visible in exhibits 78 and 79, but it is in no way prominent.
Indeed, no witness indicated he or she selected defendant because of the tattoo. The
identification procedure was not unduly suggestive.
III. Eyewitness identification expert witness testimony.
Defendant contends that the trial court improperly limited the testimony of his
eyewitness identification expert, thereby denying him due process and the ability to
present his only defense. We disagree.
“ ‘California law permits a person with “special knowledge, skill, experience,
training, or education” in a particular field to qualify as an expert witness (Evid. Code,
§ 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence
Code section 801, expert opinion testimony is admissible only if the subject matter of the
testimony is “sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.” [Citation.]’ ” (People v. Vang (2011) 52 Cal.4th 1038, 1044.)
A trial court, however, has broad discretion to admit or exclude expert testimony.
(People v. McDowell (2012) 54 Cal.4th 395, 426.)
Here, the trial court curtailed defense efforts to link wrongful convictions and
eyewitness identifications.25 The court, for example, precluded the doctor from testifying
about research regarding people who were convicted but were found to be factually
25
Before trial, the People moved in limine to limit Dr. Pezdek’s testimony. The trial
court noted that eyewitness experts “are allowed to testify to anything related to the
evidence given hypotheticals,” although some experts “don’t know how to keep their
parameters.” “[S]o I want Dr. Pezdek to focus on just generic factors.”
15
innocent.26 The court also precluded her from discussing double-blind procedures, which
is when the person conducting the procedure or test does not know who is the suspect.
The court ruled that this “is one of the things I was not going to allow, police procedure
and tactics.” The court also struck Dr. Pezdek’s testimony that identifications are less
likely to be accurate in cases involving multiple perpetrators.
Even if we agreed that the trial court’s rulings were in error, the errors were not
prejudicial and defendant’s due process rights and right to present a defense were not
infringed. (See generally Holmes v. South Carolina (2006) 547 U.S. 319, 324; Crane v.
Kentucky (1986) 476 U.S. 683, 690; Chambers v. Mississippi (1973) 410 U.S. 284, 294;
People v. Partida (2005) 37 Cal.4th 428, 435 [absent fundamental unfairness, state law
error in admitting evidence is subject to the test in People v. Watson (1956) 46 Cal.2d
818; namely, whether it is reasonably probable the verdict would have been more
favorable to the defendant absent the error].) Although the right to present a defense can
be abridged by evidence rules that infringe on the weighty interest of the accused and are
arbitrary or disproportionate to the purposes they are designed to serve (Holmes, at
p. 324), the ordinary rules of evidence generally do not impermissibly infringe on the
accused’s right to present a defense (id. at pp. 326-327).
26
Defense counsel asked the doctor whether, “[a]s part of staying current in the field
of eyewitness identification, have you familiarized yourself with recent research
regarding individuals, somewhere in the neighborhood of 250 individuals, who have been
convicted, and then” “were later exonerated, found to be factually innocent?” The People
objected that “this was directly specified in our 402 motion.” The trial court ruled, “Yes,
it has nothing to do with this witness’s expertise.”
When Dr. Pezdek, during cross-examination, was explaining the studies she
conducts and that it is not possible to include real crime victims, she referred to databases
concerning people who were wrongfully convicted. The court struck that testimony.
When the doctor said that she takes “into consideration both research studies that I and
other people have done and databases of victims of real crimes and how many incorrect
convictions there –,” the court struck the testimony.
16
Defendant had a meaningful opportunity to present his defense that he was
wrongfully identified. Evidence, for example, was presented that Ayala misidentified
defendant as the July 9, 2006 shooter, because defendant was on home arrest that day.
The defense had the opportunity to cross-examine the witnesses about their
identifications. Dr. Pezdek also educated the jury about the factors leading to inaccurate
identifications (e.g., the short amount of time the witnesses had to view the shooter; the
distracting presence of a gun; the shooter’s disguise; the distracting presence of another
perpetrator; and the delay between some incidents and identifications). To the extent
defendant argues he should have been allowed to ask the doctor hypotheticals applying
these factors to the evidence, along the lines of hypotheticals asked of gang experts (see
generally People v. Vang, supra, 52 Cal.4th 1038), the record does not show that defense
counsel tried to and was precluded from posing such hypotheticals. In any event, the jury
was more than capable of applying those factors to the case, even in the absence of
specific hypotheticals modeled on the facts of the case. And, to the extent defendant
wanted Dr. Pezdek to go beyond a simple statement that she stays current in her field by
reviewing, for example, research about wrongful convictions, the trial court would have
been within its discretion to limit such testimony under Evidence Code section 352.
Finally, we fail to see how the trial court’s exclusion of a portion of the expert’s
curriculum vitae was reversible error. The People objected to the admission of Dr.
Pezdek’s resume as hearsay and under Evidence Code section 352.27 Because the
document went “way beyond” documenting the doctor’s expertise, training, and
experience, the court excluded five or six pages. The record does not contain the
excluded portion, and it is not otherwise clear from the record what that excluded portion
contained. We therefore cannot evaluate this issue. In any event, the trial court admitted
a portion of her resume. Dr. Pezdek also testified about her credentials. Defendant has
27
The entire resume, including the excluded portion, appears to have been 10 pages
double sided.
17
not established that the exclusion of the remainder of her resume either was an abuse of
discretion or could have prejudiced defendant to such an extent as to warrant reversal.
IV. The July 9, 2006 shootings (counts 13 and 14).
Defendant raises two arguments specific to the July 9, 2006 attempted murders of
Ayala and Arroyo: A. there was insufficient evidence to support his conviction of those
counts because he was on house arrest that day, and B. the trial court denied defendant
his due process rights by excluding documents about the electronic monitoring.
A. The evidence was sufficient to support defendant’s conviction.
To determine whether the evidence was sufficient to sustain a criminal conviction,
“we review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence that is reasonable,
credible and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003)
30 Cal.4th 43, 66.) We presume in support of the judgment the existence of every fact
the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009)
46 Cal.4th 913, 919.) “ ‘Conflicts and even testimony [that] 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.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s
verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357; see also Jackson v.
Virginia (1979) 443 U.S. 307, 318-319.) Unless the testimony is physically impossible
or inherently improbable, a single witness’s testimony is sufficient to support a
conviction. (People v. Scott (1978) 21 Cal.3d 284, 296.)
18
Ayala and Arroyo were the two victims of the July 9, 2006 shooting. Ayala
identified defendant as the shooter. Although at trial Arroyo denied being present at the
shooting, he admitted to police officers that he was present but did not want to identify
defendant because he didn’t want to jeopardize his family, even though “I know he’s
guilty.” These statements were recorded and played for the jury. Defendant argues that
these identifications were impossible or inherently improbable because he was on home
arrest on July 9, 2006. Avalos did testify that defendant, on July 9, 2006, was being
electronically monitored. The monitoring report showed that defendant was within 150
feet of his home all day, and the report did not indicate that the ankle bracelet had been
tampered with. Still, Avalos conceded that there are ways, readily researchable on the
internet, to remove the ankle bracelet:
“Q. So there are ways to defeat these, it’s readily available on the internet,
correct?
“A. There are ways to try to defeat it, yes.
“Q. There are ways that you can defeat it, correct?
“A. There are – yes.”
The evidence therefore shows that it was possible for defendant to commit the July 9
crimes. Defendant’s argument amounts to an improper request we reweigh the evidence
and make credibility determinations.
B. Any error in excluding the monitoring report was harmless.28
Although Avalos testified from documents concerning the electronic monitoring
of defendant’s ankle bracelet, the People objected on foundational grounds to the
admission of the documents. The trial court agreed that there was “sufficient authenticity
and foundation” for the documents—“otherwise, I wouldn’t have allowed the witness to
testify”—but the court refused to admit them into evidence. Even if the trial court erred
by excluding the report or documents, the error was not prejudicial. Avalos testified
28
The monitoring report is attached to a subpoena duces tecum. We assume that is
what was marked as defense exhibit C but that was not admitted.
19
about the documents. He read each of the entries for July 9, 2006. The report showed no
indication defendant was outside the 150 feet range of the home unit. For the days that
defendant was on probation in July 2006 there was no indication of tampering. The
substance of the report therefore was before the jury, and the admission of the report
itself would have added little
V. Cumulative error.
Defendant contends that the cumulative effect of the purported errors deprived
him of a fair trial. As we have “ ‘either rejected on the merits defendant’s claims of error
or have found any assumed errors to be nonprejudicial,’ ” we reach the same conclusion
with respect to the cumulative effect of any purported errors. (People v. Cole (2004)
33 Cal.4th 1158, 1235-1236; People v. Butler (2009) 46 Cal.4th 847, 885.)
20
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
JONES, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
21