Opinion
F050914
6-13-2007
In re S. Q., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S. Q., Defendant and Appellant.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, Acting P.J., Wiseman, J. and Kane, J.
It was alleged in a juvenile wardship petition (Welf. & Inst. Code, § 602) that appellant S. Q., a minor, committed three felonies, viz., carjacking (Pen. Code, § 215, subd. (a)), vehicle theft (Veh. Code, § 10851) and second degree robbery (Pen. Code, §§ 211 & 212.5, subd. (c)), and two misdemeanors, viz., being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) and giving false information to a police officer (Pen. Code, § 148.9, subd. (a)). Appellant admitted the misdemeanor allegations and, following a jurisdiction hearing, the court found the felony allegations true. Following the subsequent disposition hearing, the court adjudged appellant a ward of the court, placed her on probation and ordered her committed to the Tulare County Youth Treatment Center for a period of 45 to 180 days.
On appeal, appellant contends the court prejudicially erred in (1) refusing a defense request to recall a prosecution witness who had previously testified and been excused and (2) refusing to allow a defense investigator to testify concerning an experiment the investigator apparently conducted. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
On a weekend day in October 2005, Miguel Albarran, a social worker with Tulare County, picked up appellant at juvenile hall and drove to a foster home in Porterville. Albarran was driving a Dodge minivan (hereafter the van). Appellant rode in the back seat.
Except as otherwise indicated, the factual summary is taken from Albarrans testimony.
Upon arrival at the home, Albarran exited the van and, with the keys to the van, a county-issued cell phone and his personal cell phone in his possession, went to the front door and knocked. Upon determining there was no one at home, Albarran, while still in the front yard, placed a telephone call to the foster parents, using the county phone. He spoke with the foster parents for approximately five minutes; they told Albarran they were on their way home and would arrive in less than 30 minutes.
By the time Albarran completed the call he had gotten back in the van and, intending to drive to a store and buy a soft drink before returning to the foster home in time to meet the foster parents, turned on the ignition. Appellant had remained where she was during the ride from juvenile hall: in the back seat, behind the drivers seat.
Just before ending the call to the foster parents and after he had turned on the ignition, Albarran noticed that his personal cell phone, which had been clipped to his belt, was no longer there. He then "glanced over the window" and saw the phone on the ground, "in back of" and "right next to the [drivers side] [front] tire."
Albarran opened the van door, placed his left foot on the ground and, with the "right portion of [his] body, [his] right leg" still in the seat, reached with his left hand and managed to "touch" the phone on the ground. As he reached, he held onto something with his right arm; he thought it may have been the steering wheel. Albarran "was in the process of grabbing" the phone with his left hand, at which point he "felt a push" to his lower back. He fell out of the van and landed on the ground, "in between the van and the sidewalk." From that vantage point he saw appellant drive away in the van. As the van drove away, the drivers side door was still open.
As he testified as to how he reached for the phone, Albarran demonstrated his actions, using a chair to simulate the drivers seat of the van. The court described, for the record, Albarrans movements as follows: "He made a motion where he swiveled onto his knees, and then made a reaching motion with his left hand as if he were reaching for something on the ground."
Appellant testified to the following: While Albarran was outside the van, talking on a cell phone, appellant "noticed that the keys were in the car," moved from the back seat to the drivers seat; and "took off in the vehicle." She did not touch Albarran.
City of Porterville police officer Tony Espinoza testified to the following: In conducting an investigation of a vehicle theft, he interviewed Albarran. Albarran stated he opened the door of the van, "placed one foot out of the vehicle and leaned over to grab the phone." Albarran also stated he heard the door of the van close and then "the suspect fled." In a report Officer Espinoza typed out to give to the dispatcher, he wrote, "`As the social worker exited the vehicle, above suspect pushed social worker away from the vehicle. Suspect then closed the door and fled in a stolen County vehicle." A written report the officer prepared states, "`[Albarran] opened the drivers door, stepped out, and leaned down to retrieve the cell phone."
City of Porterville police officer Sam Garcia testified to the following: He interviewed Albarran on October 28, 2005. "[The officer] asked [Albarran] specifically if he was inside the vehicle when he was pushed. Mr. Albarran indicated he was inside the vehicle leaning outside the car to pick up his cell phone when he was pushed hard enough to fall down."
A photograph of the van was introduced into evidence.
Additional Background
The testimony summarized above was taken on June 14, 2006. The court excused Albarran as a witness after defense counsel concluded cross-examination. The defense did not object.
Shortly thereafter, the People rested, and shortly after that, defense counsel announced his intention to call Jess Garcia as a witness. When the prosecutor objected on the grounds he had not been advised Garcia "was going to be made available" and that he (the prosecutor) had "never [been] given reports," a discussion ensued during which defense counsel stated the following. Garcia would testify, for purposes of impeachment, as to an "experiment" Garcia conducted which would establish that "its practically impossible to reach . . . the ground from the [van] . . . because the [van] is elevated." The "first moment [defense counsel] knew we were going to impeach the witness" was during Albarrans testimony. That was "the first moment that we knew what his version of events is." Garcia had prepared a written report, and defense counsel gave it the prosecutor "right there."
That report, the prosecutor noted, was prepared on June 9.
The court noted that Garcia apparently had performed his experiment not in the van, but in another vehicle. The court stated that in order for Garcia to testify, the defense would have to "establish an adequate foundation with respect to the comparisons of the two vehicles, whether measurements were made as to the height of the two vehicles, so that there is a sufficient foundation that the Court is satisfied that [the van] is identical to that in which Mr. Garcia conducted the experiments." The court stated it would give the prosecution an opportunity to review the report and interview Garcia, and scheduled a hearing under Evidence Code section 402 "to determine whether [the defense would] be able to establish the foundation requirements to permit Mr. Garcia to testify" on June 28. The court also stated it would consider at the hearing whether Garcia would be permitted to testify as an expert witness. At defense counsels request, the court ordered that the van be brought to the courthouse on June 28.
Except as otherwise indicated, all further statutory references are to the Evidence Code.
Section 402 states, in relevant part: "(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [¶] (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury . . . ."
At the June 28 hearing, defense counsel stated he would not call Garcia as a witness, and that therefore a section 402 hearing would not be necessary. Counsel then stated he wished to call Miguel Albarran as a witness. Then, asserting that that defense had served Albarran with a subpoena the previous day, but that the court "essentially, quashed or released [Albarran] from the subpoena," defense counsel asked for continuance to a date when Albarran could come to court. The court responded that it had not quashed the subpoena, but that it had excused Albarran from appearing that day, "as an element of fairness," because Albarran was scheduled to take an important employment-related examination, and the court "expect[ed] that there would be other witnesses available."
The prosecutor objected to the recall of Albarran. The court noted that on cross-examination defense counsel "had [Albarran] demonstrate for the Court where he was sitting, what he did, how he did it," and asked defense counsel, "in the context of Evidence Code section 352," for an "offer of proof as to why [Albarrans] testimony . . . would not be cumulative." At that point, defense counsel asked for an in camera hearing, on the ground that an offer of proof in open court would disclose to the prosecution information regarding the defense he intended to present. The court granted the request.
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or misleading the jury."
At the subsequent in camera hearing, defense counsel stated he wanted to have Albarran "position himself in the car seat" in order to show that because of the "elevated" position of the drivers seat, "it is not possible to reach on the ground and to pick up the phone as [Albarran] illustrated." When proceedings resumed in open court, the court ruled that the "showing . . . made [by defense counsel] in the in camera review [was] insufficient to show good cause . . . to limit or regulate disclosure in this instance." The court then directed defense counsel to address the issues of whether the evidence the defense proposed to present was made inadmissible by section 352 and whether the court should exercise its discretion under sections 774 and 778 to recall Albarran as a witness.
Section 774 provides, in relevant part: "A witness once examined cannot be reexamined as to the same matter without leave of the court . . . . Leave may be granted or withheld in the courts discretion."
Section 778 provides: "After a witness has been excused from giving further testimony in the action, he cannot be recalled without leave of the court. Leave may granted or withheld in the courts discretion."
There followed a lengthy exchange between the court, the prosecutor and defense counsel, after which the court declined to exercise its discretion under sections 774 and 778 on the ground that Albarran had been "extensively cross-examined" on June 14. The court also ruled that "there was a sufficient period of time for the defense to have been able to formulate any examination of Mr. Albarran at the time that he was called as a witness to fully impeach and to do whatever else was necessary." Finally, the court ruled, "on a 352 basis," that the evidence the defense proposed to introduce in the form of Albarrans testimony "would be simply cumulative," and "the suggestion that [the witness] could be further impeached does not cause the Court to change its analysis."
We discuss portions of this exchange as they become relevant
Later in the hearing, defense counsel called as a witness Victor Gonzalez, the chief investigator with the office of the Tulare County Public Defender. There followed a discussion during which defense counsel told the court that Gonzalez was the same height as Albarran and, for purposes of impeachment, would "demonstrate to the Court . . . the position of Mr. Albarran in the car," and that Albarran would "testify as a lay witness." The court told defense counsel that such testimony constituted evidence of an "experiment," such evidence was potentially admissible, but only if certain "[f]oundational items" were established, including that the experiment was relevant and was "conducted under substantially similar conditions as those of the actual occurrence." In addition, the court stated, "as a preliminary matter," the defense had to establish that the witness would testify either as an expert or based on "personal knowledge," which, the court explained, required a showing the witness was "personally" and "directly involved in the incident."
Thereafter, defense counsel asked the witness if he "physically positioned himself" in the van. The prosecutor objected, and in the discussion that followed, the court stated "if what youre trying to do is elicit an opinion as to whether . . . Albarran was able to observe certain matters or not, that is beyond his area of expertise" and Gonzalez "may not offer an opinion as to whether Albarran could have or could not have done certain things." The court further stated, "The moment you ask him to demonstrate something, hes testifying in the nature of an expert."
Subsequently, defense counsel elicited testimony that Gonzalez placed a camera bag on the ground near the front tire on the drivers side of the van and sat in the van with his "left leg . . . placed on ground," his "right leg . . . placed on the floorboard inside the vehicle" and his right hand on the steering wheel. When defense counsel asked Gonzalez if he tried to pick the bag up while in this position, the prosecution objected. In the discussion that followed, defense counsel explained he was "illustrating to the Court what his observations are and what his —" The court interjected, "Counsel, you call it `observation. It is opinion." At one point, when defense counsel argued he was "not requesting an opinion," the court responded, "Yes you are. Implicitly, youre asking for an opinion when you ask, `Were you able to see? [That question] in and of itself asks for an opinion."
Finally, the following exchange occurred:
"THE COURT: . . . [¶] This witness is not qualified as an expert. Hes incompetent to testify as to this matter.
"[Defense counsel]: What Im requesting to illustrate to the Court . . . [is] what the witness observations are of his ability to . . . view the item on the floor [sic] near the tire.
"THE COURT: Counsel, it is in the nature of an experiment, demonstration, and Ive already told you what the evidentiary requirements are, and you were not able to meet them.
"[Defense counsel]: No further questions for the witness."
After excusing Gonzalez, the court, at the request of the defense, inspected the van, which had been brought to the courthouse. Thereafter, the court reported it had done the following: observed the van with the drivers side door closed; opened that door; "sat in the vehicle"; started the van; "raised the window on the drivers side door"; "looked through the window" on both the drivers side and the passenger side; and, after getting out of the van, "observed the front portion of the vehicle in the right [sic] side of the vehicle."
DISCUSSION
Courts Refusal to Allow Recall of Witness Albarran
Appellant contends the court abused its discretion in refusing to allow the defense to recall Albarran as a witness.
As indicated above, a trial court in its discretion may allow further examination of a witness even though examination of the witness has been completed (§ 774) and the witness has been excused (§ 778). Factors to be considered in reviewing the exercise of such discretion include the significance of the evidence the moving party proposes to introduce through further examination; the partys diligence (or lack thereof) in presenting the proposed new evidence; and the stage the proceedings had reached when the moving party sought to recall the witness. (Cf. People v. Newton (1970) 8 Cal.App.3d 359, 383 [these factors applicable to review of trial courts denial of motion by criminal defendant to reopen case]; People v. Funes (1994) 23 Cal.App.4th 1506, 1520 [same].)
We consider first the significance of the evidence. As indicated above, defense counsel proposed to "position" Albarran in the van and, presumably, have him perform the acts he attempted to simulate in the courtroom while sitting in a chair, i.e., while sitting in the van, place his left foot on the ground and touch a cell phone on the ground outside the van while holding on to the steering wheel with his right hand. This evidence, appellant asserts, would have demonstrated that Albarran was unable to reach the phone, thus calling into question Albarrans testimony that while he was in a vulnerable position appellant was able to push him out of the van. Thus, appellant argues, the proposed evidence would have impeached Albarran on the crucial issue of whether appellant effected the taking of the van by force and thereby committed robbery and carjacking rather than the lesser offense of vehicle theft.
Carjacking is defined, in relevant part, as the taking of a motor vehicle "accomplished by means of force or fear." (Pen. Code, § 215, subd. (a).) Similarly, robbery, in relevant part, is the taking of any sort of personal property, "accomplished by means of force or fear." (Pen. Code, § 211.) Taking by force is not an element of vehicle theft. (Veh. Code, § 10851.)
Appellant argues that because the request to recall Albarran was denied, we must assume for purposes of our analysis that Albarran would have performed consistent with the defense offer of proof, i.e., if the proposed demonstration had been performed, Albarran would have been unable to reach the phone on the ground. Appellant bases this contention on People v. Renwick (1916) 31 Cal.App. 774, 778 (Renwick). In that case, the defendant was convicted of robbery. He presented an alibi defense, consisting of the testimony of Edward and Frances Biehl, to the effect that they were with the defendant on the date and at the time of the robbery. To counter this testimony, the prosecution called a Mrs. Gorham, who testified she saw the defendant together with the Biehls on the date in question, but at a significantly earlier hour, thus casting doubt on the Bielhs testimony. Mrs. Gorham, who was apparently the last witness to testify that day, was excused, and in court the next morning defense counsel sought to recall her, stating that he had received certain "positive information," viz., that Mrs. Gorham did not know within a months time when she saw the defendant in the company of the Biehls, and would so testify. (Id. at p. 777.)
The appellate court held the trial courts refusal to allow the defense to recall Mrs. Gorham was reversible error, noting that Mrs. Gorhams testimony was the only evidence "directly contradicting" the testimony of the Biehls and that it "may have been the controlling reason why the jury determined that the defendants alibi was not proven." (Renwick, supra, 31 Cal.App. at pp. 777-778.) In the portion of its discussion most relevant here, the court stated, "Since the request to call back Mrs. Gorham was denied, we must assume that if she had been permitted to testify further, she would have modified her testimony by admitting" she could have been off by as much as a month as to the date of the events she described. (Id. at p. 778, italics added.)
The evidence in question in the instant case, however, stands on a different footing. In Renwick the evidence was something a witness had said; to assume the witness actually said it requires a determination as to whether the attorney accurately reported a simple statement made by a witness, and no reason appears to cast doubt on the attorneys claim that the witness said what the attorney represented to the trial court the witness said. Here, on the other hand, the matter asserted (that the proposed evidence would show Albarrans version of events was physically impossible) depended on a demonstration (Albarran actually sitting in the vans drivers seat) which, so far as the record indicates, had not been conducted. The proposed evidence, unlike the evidence in Renwick, did not exist; and the import of that evidence, i.e., defense counsels claim that it would show Albarran could not reach the phone on the ground while remaining partially inside the van, was a prediction of what the as-yet-not-conducted experiment would show. Further, we have examined the photograph of the van introduced into evidence at the jurisdiction hearing. It can be seen from the photograph how far above the ground a person positioned in the drivers seat sits, and it appears from this photograph that Albarrans testimony is far from implausible.
Under these circumstances, we need not adopt the approach of the Renwick court and assume the proposed demonstration would unfold in the manner predicted by defense counsel. Rather, we consider that appellants offer of proof is, in essence a prediction as to what an as-yet-not-conducted demonstration would show, and that the photograph of that evidence casts some doubt on that prediction. These factors undercut the significance of the proposed evidence.
We next consider the degree of defense counsels diligence. At the hearing on June 28, defense counsel argued that it was necessary that Albarran be recalled because on June 14, when Albarran testified, he (defense counsel) had not arranged for the van to be available at the courthouse and therefore he could not have presented the impeachment evidence he proposed to present. Further, he suggested, his failure to have the van available did not indicate a lack of diligence because he did not know that Albarran claimed he was pushed while inside the van until Albarran so testified. Defense counsel told the court that when he heard Albarran testify, "that was the first moment we knew we were going to impeach the witness," and that until he heard Albarran testify he "did not know [Albarran] was inside or outside the vehicle." Defense counsels suggestion that he was surprised by Albarrans testimony finds some support in the fact that the police report, with which counsel was presumably familiar prior to June 14, indicated that Albarran told an investigating officer he "stepped out [of the van], and leaned down to receive the cell phone." (Italics added.) On the other hand, any claim of surprise is undercut by the fact that counsel apparently had an investigator perform an experiment several days in advance of the June 14 hearing, and at that hearing, after voicing no objection to Albarrans being excused, he called Garcia as a witness for the purpose of impeaching Albarran by showing, apparently based on the previously conducted experiment, the same fact he proposed to prove by recalling Albarran, viz., "it is not possible" that Albarran leaned out of the van and touched the phone lying on the ground, as Albarran testified he did.
The record suggests that defense counsels real difficulty was not that he was surprised by Albarrans testimony, but that it was not until after the court raised questions as to whether the defense could establish the foundational facts necessary to allow Garcia to testify, and set a section 402 hearing to resolve those questions, that counsel came to the conclusion that his plan to present impeachment evidence in the form of Garcias testimony rather than through cross-examination of Albarran was highly problematic. At the June 28 hearing, in arguing that he should be allowed to recall Albarran, defense counsel told the court: on June 14, he "did not foresee that wed need Mr. Albarran," he "foresaw wed have the ability to get [Garcia] and conclude our testimony," after June 14 "we had two in Chambers meetings," during which the prosecutor raised "numerous objections," and defense counsel decided on a different "method of defense" after "receiv[ing] the transcript," "reviewing the information," "go[ing] over the transcripts," "think[ing] what are my lines of defense," and "consult[ing] with other members of my staff."
Thus, although the record indicates that although after June 14 counsel acted with some diligence—reviewing the record, consulting with others in his office and subpoenaing Albarran—the record also provides support for the conclusion that the court reached, i.e., that prior to June 14 defense counsel was less than diligent in failing to do the work necessary to come to the conclusion he came to later regarding the difficulties in presenting impeachment through Garcias testimony. We note further that at the point in the proceedings appellant made his request to recall Albarran, granting that request would have necessitated a continuance because the court had informed the witness he need not be in court that day.
Judicial discretion "`"implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason." [Citations.] A decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review."" (People v. Zaring (1992) 8 Cal.App.4th 362, 378.) Here, given the factors undercutting the significance of the proposed evidence, the stage of the proceedings at which it was offered and the conclusions the trial court reasonably could have drawn concerning defense counsels diligence, we cannot say the courts denial of the defense request to recall Albarran was arbitrary or capricious. Accordingly, the court did not abuse its discretion under sections 774 and/or 778.
Appellant also argues that the courts denial of the request to recall Albarran deprived appellant of her right under the due process clause of the Fourteenth Amendment to the United States Constitution to "present [her] defense to the trier of fact." There is no merit to this contention.
"The general rule remains that `"the ordinary rules of evidence do not impermissibly infringe on the accuseds [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." [Citations.]" (People v. Lawley (2002) 27 Cal.4th 102, 155, fn. omitted.) Where a "trial courts ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense," the ruling does not constitute a violation of due process. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) The challenged ruling did not violate appellants constitutional right to present a defense.
Finally, appellant challenges the courts ruling on her request to recall Albarran on the ground that it deprived her of the right to confront witnesses against her under the Sixth Amendment to the United States Constitution. This contention too is without merit.
"The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution `to be confronted with the witnesses against him." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 (Van Arsdall).) "[T]he right to confrontation [under the Sixth Amendment] includes the right to cross-examine adverse witnesses on matters reflecting on their credibility." (People v. Quartermain (1997) 16 Cal.4th 600, 623.) "`However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. . . . [U]nless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [the witnesses] credibility" [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment." (People v. Chatman (2006) 38 Cal.4th 344, 372.) "[T]he burden is on an appellant to affirmatively show in the record that error was committed by the trial court." (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.)
Here, as demonstrated above, the value of the evidence appellant sought to introduce through further examination of Albarran was speculative; because the proposed demonstration had not been conducted, it is by no means clear what it would have shown, and the claim that it would proceed as asserted by defense counsel is dubious, as indicated by the photograph of the van in evidence. On the record before us, appellant has not met his burden of establishing that the evidence he was prevented from presenting would have produced "a significantly different impression of [the witnesss] credibility." (Van Arsdall, supra, 475 U.S. at p. 680.)
Because we find the court did not err refusing the defense request to recall Albarran on the grounds discussed above, we need not address appellants challenge to the courts conclusion that the proposed evidence was inadmissible under section 352.
Courts Limitation of Examination of Witness Gonzalez
Appellant contends the court erred in refusing to allow defense investigator Victor Gonzalez to testify as to an experiment he performed that involved sitting in the van and attempting to reach an object on the ground. We agree.
"Evidence of an experiment is admissible when the experiment is shown to have been made under conditions substantially similar to those which gave rise to the issue on which the evidence is offered. [Citations.] The requirement is that there be substantial similarity and not identity of conditions. [Citations.] The determination whether the conditions were substantially similar to make the experiment of any value in aiding the [trier of fact] is a matter resting in the sound discretion of the judge." (People v. Terry (1974) 38 Cal.App.3d 432, 445 (Terry).)
The court told defense counsel that the foregoing must be established. However, the court added additional requirements. The court stated that Gonzalez could testify to an experiment he conducted only if he was either "directly involved" in, i.e., a percipient witness to, the instant offense, or qualified to testify as an expert. This was error.
Terry is instructive on this point. In that case the defendants raised an alibi defense to a charge of robbery, and asserted that because they were at a certain location at a certain time they could not have been at the scene of the robbery at an earlier time because the distance between the two locations was too great for them to have been able to travel it in the relevant time interval. In an attempt to show the robbery could have been committed by the defendants, the prosecution presented evidence that eight months after the robbery, a police detective conducted an experiment in which he drove a car between the two locations, beginning his trip at the same time of day the robbery occurred; road conditions were similar to those on the day of the robbery; he did not exceed the speed limit; and the trip took 13 minutes, a time less than the relevant interval. The trial court rejected a defense challenge to the admissibility of the detectives testimony, and the appellate court affirmed, holding that "there was a sufficient showing that the conditions of the experiment were substantially similar to those existing on the date of the robbery." (Terry, supra, 38 Cal.App.3d at p. 445.)
The detective in Terry did not testify as an expert. He simply drove between two points and reported the time it took him to do it. Such testimony did not require any special expertise. Rather, the relevant question was simply whether there was a "sufficient showing that the conditions of the experiment were substantially similar to those existing on the date of the robbery." (Terry, supra, 38 Cal.App.3d at p. 445.) Similarly, in the instant case the defense sought to introduce evidence that its investigator performed a simple activity: sitting in a van, leaning out and trying to pick up an object. The admissibility of this evidence depended on a showing of "substantial similarity" between, e.g., the camera bag Gonzalez used in his experiment and a cell phone. (Terry, supra, 38 Cal.App.3d at p. 445.) The court, however, erred in imposing the additional requirement that the defense establish that Gonzalez either witnessed the offense or was qualified to testify as an expert.
We emphasize that we offer no opinion as to whether the defense made or could have made an adequate showing of substantial similarity, or whether the experiment evidence was inadmissible under section 352 or on some other ground(s). Rather, we conclude that the court applied an incorrect legal standard to the question of the admissibility of Gonzalezs testimony, thus depriving appellant of the opportunity to make the required showing of similarity.
We turn now to the question of whether the courts error requires reversal. Appellant suggests the error is one of constitutional dimension and therefore the People have the burden of showing the error was harmless beyond a reasonable doubt, under the standard set forth in Chapman v. California (1967) 386 U.S. 18. We disagree. Because the courts error prevented appellant from introducing evidence but did not constitute a refusal to allow her to present a defense, the proper standard of review is that set forth in People v. Watson (1956) 46 Cal.2d 818, 836.
Here, as indicated above, the court had before it a photograph of the van. Moreover, the court observed Albarran demonstrate his movements during his testimony, and the court had observed, and sat in, the van. On the basis of this evidence, the court apparently credited Albarrans testimony. In our view, it is not reasonably probable that evidence of an experiment conducted by a defense investigator would have caused the court to reach a different conclusion. Thus, the error was harmless.
DISPOSITION
The judgment is affirmed.