Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA298444, Charles F. Palmer, Judge.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Mathews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
WEISBERG, JUDGE
SUMMARY
Appellant Stacey L. Wells was charged with two counts of second degree robbery in violation of Penal Code section 211. It was also alleged that Wells personally used a firearm within the meaning of section 12022.53, subdivision (b), and that he had suffered seven prior convictions pursuant to sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d), as well as one prior conviction pursuant to section 667, subdivision (a)(1).
All further statutory references are to the Penal Code, unless otherwise stated.
Appellant’s first trial resulted in a hung jury. He was subsequently convicted in a second trial as charged, and the gun allegations were found true. He waived trial by jury on the priors, and the trial court found each to be true as alleged.
On May 18, 2007, appellant was sentenced to a total term of 68 years and 4 months to life in state prison with total presentence credits of 519 days. On count 1, the trial court imposed a sentence of 25 years to life, a consecutive sentence of 10 years pursuant to the gun allegation of section 12022.53, subdivision (b), and a consecutive term of 5 years pursuant to section 667, subdivision (a). On count 2, the court imposed a consecutive sentence of 25 years to life, and an additional consecutive sentence of 3 years, 4 months pursuant to section 12022.53, subdivision (b).
On appeal, he contends that (1) the trial court erred in not giving a special jury instruction on eyewitness identification; (2) the trial court erred in excluding opinion testimony about the difficulty in distinguishing between real and replica firearms; and (3) the abstract of judgment incorrectly states appellant was convicted of two counts of first degree robbery. With the exception of the latter contention, we find no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying appellant’s conviction relate to two robberies that occurred on November 30, 2005. The first robbery, charged as count 2, occurred at approximately 10:30 p.m. Christopher Daniels parked his car on Angus Street in the Silver Lake area of Los Angeles. Daniels observed a maroon two-door car drive up as he exited his vehicle. There were two men in the car. The driver, later identified as appellant Wells, asked Daniels for directions to a street Daniels was not familiar with. Appellant then pulled out a silver semiautomatic handgun and demanded Daniels’s wallet. After some conversation, Daniels handed over his wallet but refused to hand over his cell phone. Daniels then ran away and reported the robbery to the police. He described the robber as a male in his early 20’s. Although he did not see the robber outside of the car, he described him to be between five-foot eight inches and five-foot ten inches in height. He also described the robber as wearing a short-sleeved shirt with horizontal stripes.
Charges were filed against Robert Evans as the other participant in these offenses. He pled guilty prior to appellant’s trial.
The police showed Daniels a six-pack photographic lineup in January 2006. Although a photograph of Wells was included in the six-pack, Daniels said that individuals depicted in two other photographs resembled the robber but he was not sure. Daniels identified Wells as the driver at the preliminary hearing in April 2006. At trial, he stated that he was able to identify Wells in court because: “It was the different characteristic in person, and I had a biological reaction where all of a sudden I just knew.”
The second robbery, charged as count 1, also occurred on November 30, 2005. This robbery occurred approximately one-half mile from where the Daniels robbery took place. The victim of this second robbery was Christopher Matalone, who observed a burgundy-maroon sedan approach him as he walked on DeLongpre Street in the Silver Lake area of Los Angeles between 10:45 and 11:00 p.m. The driver of the vehicle, who Matalone subsequently identified as Wells, asked him for directions. Matalone went to his car to get a map. Appellant Wells got out of his car and approached Matalone. He pointed a chrome semiautomatic handgun at Matalone and demanded his cell phone and wallet. Matalone gave him both. Wells then demanded that Matalone turn over the contents of the trunk of his vehicle. Matalone gave him a guitar in a case from the trunk. Appellant also took a CD container from the trunk. He also demanded that Matalone turn over his watch. Matalone complied. Appellant then told Matalone to turn and run, which he did. As he ran away, Matalone testified that he saw appellant’s car drive off.
Matalone subsequently gave a report to the police, providing a description of appellant as five-foot nine inches to five-foot ten inches and weighing less than 190 pounds, and wearing a baggy jacket and baggy jeans. He also described appellant as having some sort of marking or scar under the left eye.
Telephone calls were made from Matalone’s cell phone to Marcus Lee’s cell phone at 11:31 p.m. on November 30, 2005, and at 12:01 a.m. and 9:56 a.m. the next morning. Lee testified that he was a friend of appellant and that appellant knew his cell phone number, but he did not know who made these calls to his cell phone. Lee testified that he was living with appellant during November 2005 in appellant’s apartment in downtown Los Angeles. Other calls were made on December 1, 2005 at 12:22 p.m. and 12:56 p.m. to Betty O’Quinn’s cell phone, appellant’s mother. O’Quinn testified that she did not know who made the calls and did not remember whether appellant had called her that day. Matalone testified that he did not make any of these calls.
O’Quinn owned a dark red Nissan Maxima that she allowed appellant to drive when his car was inoperable. Appellant had been cited for traffic violations while driving that vehicle in the vicinity of the robberies.
Matalone identified appellant as the robber from a six-pack photographic lineup in January 2006. He also identified appellant at trial.
Appellant testified in his defense. He denied involvement in either robbery. He testified that he was living in an apartment in downtown Los Angeles with his daughter Christina and his friend Marcus Lee on November 30, 2005. The apartment is a 10- to 15-minute drive from where the robberies occurred. He testified that his car was not in operating condition, and he had to borrow Lee’s car. He testified on the night of the robberies, he went to church with his 17-year-old daughter Christina. They left church at approximately 10:00 p.m. and went to Christina’s grandmother’s house and stayed until 10:30 p.m. when they went home, arriving at approximately 11:00 p.m. He also testified that his mother let him use her red Nissan once or twice during November when his car was inoperable.
He testified that he first became aware he was a suspect when friends told him police were at his mother’s house, and he learned that the police had conducted a search there. He called the police detective and left his phone number. Appellant was arrested in February 2006.
Appellant’s daughter Christina testified that she and appellant went to church in Lawndale at 7:00 p.m. on the night of the robberies. They arrived home at approximately 11:00 p.m. after having spent about one-half hour at her grandmother’s house, and appellant did not leave her alone that night. She also testified that appellant drove Lee’s Chrysler convertible that day, and every other day that month. She further testified that appellant used his own cell phone that night and the next day, and she identified phone records from his cell phone that showed calls that were made during that time frame.
Teresa Murray, a counselor at Christina’s church, testified that she saw appellant at the church between 8:00 and 9:00 p.m.
The defense also offered the testimony of Dr. Robert Shomer, a psychologist and expert in eyewitness identification issues. He described various factors that make eyewitness identification unreliable, including sudden life-threatening stress, the use of a gun, multiple perpetrators, passage of time, a sudden event at night, and cross-racial identification. Shomer testified that the procedure used to secure identification is crucial to its reliability. Showing pictures one at a time is much more reliable than showing a group of photographs, and the process is more reliable when the person who is showing the photographs does not know who the suspect is. If a six-pack photo display is used, the photographs should be of similarly appearing individuals so that one “doesn’t stick out like a sore thumb.” He also testified that witnesses assume when the police show them a set of photographs that the person the police think is responsible for the crime will be in one of the photographs. It becomes important to emphasize to the witness that the suspect might not be in the photo display and that the witness does not have to make an identification.
DISCUSSION
1. Eyewitness Identification Jury Instruction
During discussion of jury instructions prior to closing argument, the parties agreed and the court later instructed the jury with CALCRIM No. 315.
“You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.
The appellant requested an additional “pinpoint” instruction as follows:
“In evaluating the testimony of witnesses on the issue of identification you may consider as a factor whether the identification process was fair and impartial or whether the police used coercion or deception or suggestion in obtaining the identification from a witness.
“If you find that the police exercised coercion or deception or suggestion in the identification process you must then consider whether or not it was of such a nature as to be reasonably likely to produce a misidentification or untrue testimony. If you find that such a likelihood exists you should reject such identification testimony.”
The appellant argued in the trial court that CALJIC No. 2.92, the corresponding CALJIC instruction to CALCRIM No. 315, contained a catch-all provision that is not included in CALCRIM No. 315. Appellant argued that he was entitled to a pinpoint instruction but could not cite any specific authority for the proposed special instruction. The People objected to the instruction on the basis that it was argumentative and there was no authority for it to be given. The trial court rejected it, stating: “The court is aware of no authority. I think you may argue something along these lines that it is to some extent encompassed within these existing instruction 315, but -- and I think -- and, in particular, I think the way this is worded, also, I’m not sure it is a correct -- I don’t believe it is a correct statement of the law. Accordingly, I am going to decline to give [it].”
“Any other evidence relating to the witness’ ability to make an identification.”
Appellant argues that evidence presented in the trial supported giving the instruction and failure to give it was error. He further contends that identification was a closely disputed issue in the trial and error in not giving the special instruction requires reversal. Appellant contends that the identification procedure was defective because victim Matalone believed that a suspect was in custody at the time the police asked him to make an identification and that Matalone expected a photograph of the person in custody would be in the six-pack display he was shown, thereby limiting Matalone’s choice to one of six individuals. He further contends that the six-pack display itself was unduly suggestive because of the characteristics of the individual photographs.
As he did in the trial court, appellant contends that since CALCRIM does not include the “catch-all” provision found in CALJIC No. 2.92, he was entitled to his special instruction. That argument fails. The two instructions, in discussing factors the jury may consider in evaluating eyewitness identification, have comparable provisions: CALCRIM: “Were there any other circumstances affecting the witness’s ability to make an accurate identification.” CALJIC: “Any other evidence relating to the witness’ ability to make an identification.” The only difference between these two is the use of the word “circumstances” in one and the word “evidence” in the other. The two instructions are substantially the same in all respects.
In support of the giving of the special instruction, appellant contends that the procedure used by the police caused or could have caused victim Matalone to identify him. Matalone described what occurred when the police showed him the six-pack, and he identified the photograph of appellant. One of the detectives read to him, and he also read the following: “‘In a moment I’m going to show you a group of photographs. This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. Keep in mind that hair styles, beards and mustaches may easily be changed. Also, photographs may not depict the true complexion of a person. It may be lighter or darker as shown in the photo. Pay no attention to any markings or numbers that appear on the photos or any other differences in the type or style of the photographs. When you have looked at all of the photos, tell me whether or not you see the person who committed the crime. Do not tell other witnesses that you have or have not identified anyone.’” Matalone also testified that the police told him “‘something to the effect of we have a person in custody who may be the perpetrator of the crime and we want you to come look at some photos to see if that is the case.’” He also testified: “[T]hey called me in to the station for an ID and I assumed they wouldn’t call me in if they didn’t think they had a suspect for the crime, so yes, I did expect to go in and see if it was, in fact, the person who robbed me.”
The trial court has no sua sponte duty to instruct the jury on eyewitness identification. (People v. Cook (2006) 39 Cal.4th 566, 599.) A trial court must give an instruction, when requested by the defense, which brings focus to the factors relevant to the identification in the specific case. “[T]he listing of factors to be considered by the jury will sufficiently bring to the jury's attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. The instruction should list the applicable factors in a neutral and non argumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness. It should list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative.” (People v. Wright (1988) 45 Cal.3d 1126, 1143, original italics, fn. omitted.)
Although the evidence supports the conclusion that Matalone expected to see a photo display that would contain a photograph of a person the police suspected committed the robbery, as discussed, supra, this does not constitute evidence of coercion or deception. Although Matalone may have had a subjective belief that the police had a suspect in the photo six-pack, this was not the result of any misconduct by the police and would not support the giving of the special instruction requested by appellant. As described by Dr. Shomer, this is a common experience and one addressed by the admonition read to the witness.
The instruction proposed by appellant was also argumentative and it was properly rejected. (People v. Wright, supra, 45 Cal.3d 1126 at p. 1135; People v. Slocum (1975) 52 Cal.App.3d 867, 893.) The instruction focused on factors favorable to the appellant and then sought to impose an evidentiary exclusion on the identification. Appellant has not pointed to any evidence of coercion or deception in the identification process and we have found none. The proposed instruction told the jury that if it were to find that the police “exercised coercion or deception or suggestion . . . of such a nature as to be reasonably likely to produce a misidentification or untrue testimony” the jury should reject the identification testimony. In essence, the appellant proposed to have the jury reject the identification testimony even if the jury believed that the identification was in fact reliable, if the jury found that there was a reasonable likelihood, unrealized in this case, that a misidentification could be produced. Appellant has cited no authority for such an instruction and we have found none. The instruction given by the trial court here, CALCRIM No. 315, adequately addressed factors the jury should consider in evaluating the eyewitness identification testimony. (People v. Wright, supra, 45 Cal.3d at pp. 1141-1142; People v. Fudge (1994) 7 Cal.4th 1075, 1108-1110.)
The six-pack used in the identification by Matalone was received in evidence and provided to the jury during deliberations. Appellant contends that it was unduly suggestive. We have reviewed the display and conclude that appellant’s contention is without merit. It should be further observed that victim Christopher Daniels failed to identify appellant in the same photo six-pack. In fact, he thought the photos of two other individuals resembled the robber.
Assuming it was error not to give the appellant’s proposed instruction, the error was harmless because there was no reasonable probability a result more favorable to appellant would have occurred had the instruction been given. (People v. Wright, supra,45 Cal.3d at p. 1144; People v. Fudge, supra,7 Cal.4th at pp. 1111-1112.) The circumstances of the identification by both Daniels and Matalone were explored in depth during their cross-examination and in the testimony of Dr. Shomer. Strong circumstantial evidence connected appellant to both robberies. A car matching the description of O’Quinn’s red Nissan was used in both robberies; the driver asked for directions while the passenger remained in the car; a gun of similar description was used in both; and a cell phone taken from Matalone was used to call appellant’s mother O’Quinn and appellant’s friend Lee shortly after the robberies.
2. Exclusion of Evidence of Replica Gun
Victim Christopher Matalone described the weapon used by appellant as a semiautomatic handgun. He testified that it looked like a Colt .45, similar to guns he had seen before, and he assumed that it was real: “I never physically handled one myself. From what I have seen in person and on TV and in pictures, it looked real to me and I assume that it was real. I wasn’t going to ask him: ‘Excuse me, is that a real gun?’ It looked real to me and I decided to treat it as if it was a real gun, which means I wasn’t going to object to anything that he was going to ask me to do.” The defense counsel showed Matalone a photograph of a replica gun during cross-examination and Matalone testified that it looked similar to the gun used in the robbery. The photograph shown to Matalone was not admitted in evidence.
Defense counsel proffered the testimony of defense investigator Aealeerto Luper. Defense counsel stated Luper, a former police officer, would testify that he had experience with replica guns and that it was difficult to distinguish between replica and real guns. The People objected to this evidence on the basis that the defense had not provided discovery regarding expert firearms evidence. The trial court denied admission of the evidence on the grounds that the evidence was not properly subject of expert opinion, that there was no evidence that a replica gun had been used in the robberies, and that the evidence was not timely produced by appellant.
Section 12022.53, subdivision (b) provides, in part: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.” Robbery is an offense specified in subdivision (a). A firearm is defined as “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” (§ 12001, subd. (b).) “[T]oy guns obviously do not qualify as a ‘firearm,’ nor do pellet guns or BB guns because, instead of explosion or other combustion, they use the force of air pressure, gas pressure, or spring action to expel a projectile.” (People v. Monjaras (July 21, 2008, C055746) ___ Cal.App.4th ___ [2008 Cal.App. Lexis 1112, ___].)
Appellant contends that Luper’s rejected testimony would have provided relevant evidence of whether the People had met their burden of proof beyond a reasonable doubt that the weapon used fell within the definition of section 12022.53.
Appellant contends that Luper’s testimony should have been admitted as lay opinion pursuant to Evidence Code section 800, which provides: “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.” Appellant finds support for his argument in People v. Maglaya (2003) 112 Cal.App.4th 1604, which upheld the trial court’s ruling that allowed nonexpert police officer testimony that shoeprints the officer observed at the crime scene were similar to the pattern of the appellant’s shoes. (Id., at p. 1608.)
“The officer examined both the shoes and the photographs, which he had taken himself. He testified as to the similarities in the tread patterns generally and ridge lines specifically. He also noted the size of the shoe prints corresponded with the size of defendant’s tennis shoes. In sum, the evidentiary foundation . . . was provided in the case at bar. [¶] [T]he officer did not testify that defendant’s shoes made the prints at the scene of the crime. [Citation.] Rather, he simply compared the tread on defendant’s shoes with the prints in the dirt and testified they were ‘similar.’ This testimony was well within the competence of a lay witness and was helpful to a clear understanding of the officer’s testimony. Consequently, the trial court did not abuse its broad discretion in permitting Sergeant Johnston’s lay opinion testimony.” (Id., at p. 1609.)
Here, however, the weapon used in the robberies was never recovered and Luper never saw it. Luper’s proposed testimony was his generalized opinion that it is difficult to distinguish between real and fake guns; appellant did not propose that Luper testify that the weapon seen by Matalone or Daniels was fake. The proffered evidence was irrelevant in that it had no “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) A trial court has broad discretion in determining whether evidence is relevant. (People v. Schied (1997) 16 Cal.4th 1, 13.) A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jones (1998) 17 Cal.4th 279, 304; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Alvarez (1996) 14 Cal.4th 155, 201.) We find no such abuse here.
Had the latter been offered it would have properly been rejected as not based upon Luper’s “own perception.” (Evid. Code, § 800, subd. (a).)
We therefore find it unnecessary to discuss whether the offer of Luper’s testimony was properly excluded pursuant to section 1054.5 because it was not timely disclosed to the prosecution.
Further, assuming it was error not to allow the proposed testimony, the error was harmless because it is not reasonably probable that appellant would have obtained a different result. (People v. Watson (1956) 46 Cal.2d 818, 836.) Both Daniels and Matalone similarly described the weapon used in the robberies as a chrome or silver semiautomatic handgun. They believed it was real and not a toy. “Simply stated, when as here a defendant commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm within the meaning of section 12022.53, subdivision (b). In other words, the victim's inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm.” (People v. Monjaras, supra, ___ Cal.App.4th at p. ___.)
3. Abstract of Judgment
Appellant contends that the abstract of judgment should be corrected to reflect that he suffered convictions for second degree robbery instead of first degree. Appellant is correct. Appellant was charged with two counts of second degree robbery in violation of section 211 and was found guilty “as alleged.” The abstract of judgment states that appellant was convicted of “Robbery 1st” in both counts. The trial court is ordered to correct the abstract of judgment to reflect conviction of two counts of second degree robbery.
DISPOSITION
The judgment is affirmed. The trial court is ordered to correct the abstract of judgment to reflect conviction of two counts of second degree robbery and to send a certified copy of the amended abstract of judgment to the Department of Corrections.
We concur: MALLANO, P.J., ROTHSCHILD, J.
“In evaluating identification testimony, consider the following questions:
“Did the witness know or have contact with the defendant before the event?
“How well could the witness see the perpetrator?
“What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation?
“How closely was the witness paying attention?
“Was the witness under stress when he or she made the observation?
“Did the witness give a description and how does that description compare to the defendant?
“How much time passed between the event and the time when the witness identified the defendant?
“Was the witness asked to pick the perpetrator out of a group?
“Did the witness ever fail to identify the defendant?
“Did the witness ever change his or her mind about the identification?
“How certain was the witness when he or she made an identification?
“Are the witness and the defendant of different races?
“Were there any other circumstances affecting the witness’s ability to make an accurate identification?
“Was the witness able to identify the defendant in a photographic or physical lineup?
“The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty.”