Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA059421 Michael Johnson, Judge.
Charlotte E. Costan, 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, Senior Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
A jury convicted appellant Ramon Cervantes Chavez of first degree murder (Pen. Code, § 187, subd. (a)) and found true the special circumstances of lying in wait (§ 190.2, subd. (a)(15)), murder in the commission of robbery (§ 190.2, subd. (a)(17)(A)) and murder in the commission of a burglary (§ 190.2, subd. (a)(17)(G)). The jury also found true the firearm-use allegations of personally and intentionally discharging a firearm causing death (§ 12022.53, subds. (b), (c) & (d)). In a bifurcated proceeding, appellant admitted the special circumstance of having suffered a prior conviction for first degree murder (§ 190.2, subd. (a)(2)). The trial court sentenced appellant to a prison term of life without the possibility of parole for the special circumstances murder plus a consecutive prison term of 25 years to life for the discharge of a firearm causing death (§ 12022.53, subd. (d)). The court stayed the sentence on the remaining enhancements under section 654. On appeal from the judgment, appellant contends the trial court made several evidentiary and instructional errors, and he challenges the sufficiency of the evidence to support the verdict. We affirm the judgment.
Statutory references are to the Penal Code, unless otherwise indicated.
The prosecution elected not to pursue prior felony strike allegations (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)).
FACTUAL AND PROCEDURAL BACKGROUND
1. The Current Offense – The Shooting at Jetro in Vernon
a. Prosecution evidence
At 8:45 a.m. on January 14, 1999, Eleazar Jaramillo, an armed security guard for the Brinks Armored Truck Company (Brinks), was shot and killed as he was picking up money from Jetro Cash and Carry (Jetro), a large warehouse grocery store. The prosecution’s theory was that appellant’s brother, Ignacio Chavez, dropped off appellant at Jetro and remained in the parking lot when appellant entered the store. Appellant waited for the Brinks security guard to arrive and be given the money by a Jetro supervisor. As the security guard was leaving Jetro, appellant followed, shot him once in the head and fled with the money into the parking lot, where Ignacio Chavez was waiting to drive him away. The defense theory was mistaken identity. Appellant was neither the shooter nor otherwise involved in the commission of the crimes.
Ignacio Chavez was charged as a codefendant. After the prosecution decided to try the matter as a capital case and did not oppose appellant’s motion to sever, the trial court severed appellant’s trial from that of his brother. Ignacio Chavez is not a party to this appeal.
According to the prosecution evidence, security guard Luis Barraza, who was Eleazar Jaramillo’s partner, drove the Brinks truck and stayed in the parking lot while Jaramillo went inside Jetro. Barraza did not witness the shooting. Several Jetro employees and customers were near the store entrance when Maria Castillo, a cashier, admitted Jaramillo into the area where the store safe was located. The shooting occurred as Jaramillo was heading out of Jetro with the bag of money. He collapsed onto the floor and died at the scene. The shooter grabbed the canvas money bag and ran from the store. Searching for ballistic evidence, police found no bullets or shell casings. A firearms examiner determined the piece of bullet removed from Jaramillo was more consistent with being fired from a revolver than from a semiautomatic weapon.
Several witnesses inside Jetro on the morning of January 14, 1999 testified as to what happened immediately after they heard a loud noise, which turned out to be the gunshot. Maria Castillo, the cashier, testified she looked up and saw Jaramillo lying on the floor. The shooter grabbed the money bag and ran towards the store entrance. He had dark skin like someone from the Middle East, a pointed nose and was wearing dark glasses and a baseball cap. He appeared to be about 30 or 35 years old, and to weigh between 150 and 160 pounds.
Pamela Bables, a Jetro customer, was at Maria Castillo’s window on the morning of the shooting. After hearing the noise, Bables turned and saw the shooter standing behind Jaramillo, pointing a silver gun with a long barrel at his head. Jaramillo fell forward onto the floor, and the shooter grabbed the money bag and left the store. Bables testified his skin color was “medium, ” and he was shorter than Jaramillo. The shooter was wearing dark pants, a dark jacket, a baseball cap and large dark glasses.
Monica Padilla, a Jetro receptionist, was checking in customers at the store entrance that morning, when the shooter ran out of the store. Padilla was able to see the shooter’s full face and profile for four to five seconds. She described his nose as “pointy, ” big and “long.” The shooter had on clear glasses that looked like reading glasses and he had “fair” or “medium” skin color. He was wearing a denim Levi jacket with a fur collar, and a baseball cap. As Padilla watched, the shooter got into the passenger side of a brown Toyota Corolla that was backed into a parking space. Before the car sped off, Padilla wrote down the license plate and later gave it to police.
Sergio Gasga was the equipment and supplies manager for Jetro. He walked towards the reception area and saw the shooter quickly leaving the store and get into the passenger side of a brown Toyota Corolla. Gasga yelled the license plate number to Padilla. Gasga testified the shooter was wearing clear glasses, a flannel jacket, and a baseball cap. He appeared to be a light-skinned Hispanic, with a moustache and a short, “pointy” nose. Gasga estimated the shooter’s age as late twenties. He also testified the shooter was holding a large chrome gun with a black handle that looked like a.357 revolver.
Juan Zavala was in the Jetro parking lot waiting for a job interview. He saw a man run out of the store carrying a chrome revolver and a canvas bag. Zavala testified the man appeared to be in his twenties and a little over five feet tall. He got into a brown Toyota Corolla that drove away.
Ernesto Garcia was the front end manager for Jetro. Prior to the shooting, he noticed a man, who was not a regular customer, standing around with a shopping cart. Garcia testified the man “stood out.” The man stayed in the area for an hour or two and never approached the cash registers. He was a light-skinned Hispanic and about five feet, five inches tall. The man appeared to be in his mid-thirties. The man was wearing prescription glasses, a white T-shirt and a baseball cap. After Garcia heard a noise, he saw the man quickly leave the store, holding a large revolver and a money bag.
On February 16, 1999, police found the Toyota Corolla parked on a street in the San Fernando Valley. The car was dirty and the windows were open. It appeared the car had been sitting on the street for some time. Its battery, radio and tape deck were missing. The last registered owner was Ricardo Perez, but the car had not been registered since 1996. Police learned the car had been later sold twice at auctions, but the name of the registered owner had never been changed. The car was impounded and searched. Tissues recovered from the floorboard of the car were subjected to DNA testing, which showed the DNA of Ignacio Chavez was present on one tissue, and the DNA of appellant’s nephew (Ignacio Chavez’s son) was present on another tissue. Prior to the shooting, the two brothers, appellant and Ignacio Chavez, lived together in Van Nuys.
2. Photographic Lineup Identifications
After obtaining a photograph of appellant wearing glasses from the Department of Corrections on March 7, 2003, Detective Jason Clawson retrieved booking photographs from a county law enforcement computer database and used a software program to randomly select five photographs of other men who were also wearing glasses. Detective Clawson placed appellant’s photograph in position number 3 of the six-pack photographic lineup. Detective Clawson then assembled two more six-pack photographic lineups, which did not include appellant’s photograph. During July and August 2003, Detective Clawson showed the three six-pack photographic lineups to the witnesses who said they had seen the shooter’s face. Detective Clawson read a preprinted admonition to each witness before allowing him or her to see the three photographic lineups. Every witness indicated he or she understood the admonition.
The witness admonition stated as follows: “You will be asked to look at a group of photographs. The fact that the photographs are shown to you should not influence your judgement [sic]. You should not conclude or guess that the photographs contain the picture of the person who committed the [crime]. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify the guilty parties. Please do not discuss the case with other witnesses nor indicate in any way that you have identified someone.”
On July 3, 2003, after reviewing the photographic lineup that included appellant’s photograph, Ernesto Garcia identified appellant as the person who “resembles [the shooter] the closest.” Garcia signed the back of the photographic lineup and indicated he had selected photograph number 3. Garcia also looked at the other two photographic lineups, but made no further identifications from those photographs. The same day, Maria Castillo also examined the three photographic lineups, but she was unable to identify anyone as the shooter.
On July 21, 2003, Detective Clawson met with Sergio Gagna. He reviewed the photographic lineup that included appellant’s photograph and selected number 3, saying it “had to be him.” Gagna commented the glasses appellant was wearing in the photograph were different from those he wore on the morning of the shooting, but that appellant looked like the shooter. Gagna then signed the back of the photographic lineup, indicating he had chosen photograph number 3. Gagna also looked at the two other photographic lineups, but he made no further identifications.
On August 7, 2003, Detective Clawson went to the home of Monica Padilla. He showed her the photographic lineup that included appellant’s photograph. She pointed to appellant’s photograph and said the glasses in photograph 3 were the same as those worn by the shooter, and the person depicted in the photograph was also thin like the shooter. Padilla also signed the back of the photographic lineup and wrote down number three as her selection. During this time period, Pamela Bables was also shown the three photographic lineups. She was unable to identify anyone as the shooter. Detective Clawson testified that Garcia, Gagna and Padilla were not shown the back of the photographic lineups, which revealed the recorded selections of other witnesses, until after each of them had told him of his or her own photographic identification.
3. Other identifications
Neither Maria Castillo nor Pamela Bables was able to identify anyone as the shooter in a live lineup in 2004. Bables identified someone other than appellant as the shooter in a different live lineup. Monica Padilla identified appellant as the shooter in a live lineup in 2004. She also identified a different person as the shooter in a separate live lineup. Weeks later, she examined the photographs of the live lineups and indicated appellant looked most like the shooter. Padilla also identified appellant as the shooter at the preliminary hearing in 2006 and at trial in 2009. In 2009, Sergio Gasga identified appellant as the shooter at trial. At a live lineup in 2004, Ernesto Garcia did not identify anyone as the shooter. At trial in 2009, Garcia identified appellant as the shooter, stating, “It’s like a really familiar face that I’ve seen.”
4. Evidence of Uncharged Crime – The Shooting at Costco in Van Nuys Over defense objection, the trial court admitted into evidence a shooting at a Costco store (Costco) in Van Nuys to prove appellant’s identity, common plan or scheme with respect to the Jetro shooting on January 14, 1999. According to the evidence concerning the Costco shooting, on August 13, 2000, Daniel Salazar was working as a security guard for Sectran Armored Trucking Company. Salazar’s partner parked in front of Costco and Salazar went inside to pick up money. He was armed with a.9 millimeter semiautomatic firearm. As he was leaving the store with the money, he saw a man just outside the store entrance standing over a cart. He was wearing a Hawaiian shirt, a straw hat and glasses and appeared to be reading a newspaper. The man pulled out a rifle with a round barrel out of the cart and warned Salazar not to move. Salazar began firing his gun at the man, who returned the fire. Salazar took cover behind a store pillar when he saw a second man holding a large weapon. The first shooter hobbled away before fleeing inside a white van.
Inside Costco, Rudolfo Firas, a store employee heard numerous gunshots from a high caliber automatic rifle and the sound of a car crash. He saw a white van drive by with its sliding door open. Inside the van was a man firing a long rifle in Frias’s direction. Frias identified appellant as the shooter he saw inside the van from a photographic lineup prepared by police.
Leonardo Hernandez was at his home in Van Nuys, when he heard gunshots coming from the nearby Costco and saw a white van with a flat tire turn onto his street and come to a stop. The driver and passenger emerged from the van and began walking away. The passenger had an injured leg and the driver was helping him down the street. Hernandez identified the driver from a photographic lineup prepared by police as Ignacio Chavez. Hernandez was also shown a photographic lineup that contained appellant’s photograph, but he was unable to make an identification.
Robert Lugo, an off-duty police officer, was leaving his home near Costco in Van Nuys when he heard gunfire. He looked up and saw appellant limping down the street carrying a rifle. Appellant was wearing a Hawaiian shirt and shorts, which had blood on them. When police arrived, they found appellant sitting against a tree. Next to him was an assault rifle.
There was a stipulation that appellant was convicted and sentenced for participation in the Costco crimes. The jury was not told the nature of the conviction or that anyone at Costco was killed or injured during the crimes.
The exchange of gunfire between appellant and Daniel Salazar resulted in the death of one Costco customer and injuries to others. Thereafter, appellant pleaded guilty to special circumstance murder, was sentenced to life without the possibility of parole, plus 25 years to life for the firearm-use enhancement.
Defense evidence
Appellant did not testify in his defense.
Timothy T. Williams Jr. testified as an expert on police procedures for the defense. According to Williams, the photographic lineup containing appellant’s photograph was not prepared according to standard police procedures because appellant was the only person wearing heavy dark-framed glasses. Williams also testified it is also not correct procedure for multiple witnesses to sign the same photographic lineup after making an identification. There should be only one signature on the back of the photographic lineup.
Mitchell Eisen, Ph.D, testified as an expert witness on memory for the defense. Dr. Eisen explained that human memory does not function like a camera because humans are limited in the amount of information they can acquire at any given time. According to Dr. Eisen, there are four elements of memory: (1) attention, (2) acquisition, (3) storage and organization, and (4) retrieval. With respect to storage and organization, Dr. Eisen testified that individuals watching the same event would agree on the major defining features, but would diverge on the smaller details based on how they interpreted the event and how it fit into their world view. With respect to retrieval, Dr. Eisen indicated that because humans are unable to recall every detail of an event, they generally use inference to fill in the gaps and may make mistakes during the reconstruction process. Once an incorrect detail is included in a reconstruction, it is likely to reappear in later descriptions of the event.
Dr. Eisen described the process by which a witness may make a lineup decision. He explained that an eyewitness may immediately recognize and identify the suspect based on his or her recollection. However, if the suspect is not immediately detected, witnesses often will undertake a comparative process whereby they compare the subjects of the lineup against one another and select the person that most closely matches their memory of the perpetrator. Dr. Eisen also testified that once an eyewitness has identified a person as the perpetrator, the witness likely will continue to identify that person later on even when the original identification was incorrect. Dr. Eisen stated that studies have shown there is no statistically significant relationship between confidence of an identification and its accuracy, but also made clear that witnesses can and do make accurate identifications.
DISCUSSION
1. Admissibility of Photographic Lineup Identifications
Appellant contends the trial court erred in admitting evidence of the pretrial identifications of him as the shooter because the photographic lineup procedure was unduly suggestive and unreliable, and as such, it impermissibly tainted the subsequent in-court identifications.
a. Relevant proceedings
Prior to the commencement of trial, appellant moved to exclude all out-of-court photographic identifications made of him as the shooter by Ernesto Garcia, Sergio Gagna and Monica Padilla, as well as any in-court identifications to be made at trial by the prosecution’s witnesses. Appellant contended the photographic lineup procedure was so unduly suggestive and conducive to irreparable mistaken identification that admission of the photographic identifications of him would violate his right to due process. He also claimed that any prospective in-court identifications by the witnesses would be tainted by the suggestive photographic lineup procedure and thus rendered inadmissible at trial. In support of his motion, appellant maintained he was the only person depicted in the photographic lineup wearing black horn-rimmed glasses and the photographic identifications were made four years after the shooting.
On October 23, 2009, the trial court heard appellant’s motion to exclude the identifications. After listening to lengthy testimony, reviewing the photographic lineup in which appellant was depicted in photograph number 3, and considering arguments of counsel, the trial court denied the motion, concluding, “I have examined all of the circumstances identified by the case law, the witness’s opportunity to see the perpetrator at the time of the crime, the witnesses’ description of the suspect, the time between the observation and the identification, the identification procedures used by in this case the Pasadena police, and particularly whether the defendant stood out from others or the police drew the witnesses’ attention to a particular photograph. [¶] In this case, the defense [sic] primary argument is that the photograph of [appellant] stands out because of the glasses. And it is correct that he is the only one in the sixpack [sic] with plastic – appears to be plastic rimmed glasses, but all six of them have glasses. [¶] And the thing I find striking about the sixpack [sic] is you can find something unusual about each of the six. I think that is often the case. Frankly, my attention is drawn to No. 5 because he is – he has the biggest face. The camera appears to be closest to him. He takes up the most expansive position in the 5 [sic]. [¶] No. 6 is different because he is the most distant. You can see him from his collar bone up to the top of his head. [¶] No. 4 is different because he appears, unlike the others, to be dressed like he is going to a party. He has got what looks like a nice sweater on, a plaid shirt. There is something different about all of them. But the point is, is there something so different about position No. 3, [appellant], that would make the procedure unfair? And it isn’t. It is a fair procedure, a fair sixpack, [sic] and the defense motion is therefore denied. And the identification may be used at trial.”
At trial, the prosecution presented evidence of the photographic identifications of appellant by Ernesto Garcia, Sergio Gagna and Monica Padilla. Only these three witnesses made in-court identifications of appellant.
b. The photographic lineup was neither unduly suggestive nor unreliable.
Appellant argues that the trial court’s admission of the photographic identifications of him denied him due process of law. “In order 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. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).) “‘If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).) Defendant bears the burden of proof to establish the existence of an unduly suggestive and unreliable identification procedure. (People v. Avila (2009) 46 Cal.4th 680, 700.)
“A due process violation occurs only if the identification procedure is ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ [Citation.]” (People v. Cook (2007) 40 Cal.4th 1334, 1355.) “[T]here is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspect’s photograph is much more distinguishable from the others in the lineup. [Citations.]” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) “‘Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ [Citation.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 943.) We independently review a trial court’s ruling that a pretrial identification procedure was not unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 609, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
The challenged photographic lineup in this case was not unduly suggestive. All of the photographs in the lineup depicted Hispanic males of approximately the same age and who shared some physical characteristics, specifically, a black moustache, black hair and a medium build. The men also have similar facial expressions and hair styles and are wearing clear (as opposed to dark) glasses. All of the photographs were taken from the shoulder up against a blank, neutral background. Although there were some physical variations among the men depicted, none of these differences distinguished appellant in a way that would suggest a witness should select him, including his glasses. It is true appellant’s glasses appear to have dark frames, while the glasses worn by the other men have frames that are either light or clear. Nonetheless, appellant’s photograph simply did not stand out from the others in an impermissibly suggestive manner. (See Cunningham, supra, 25 Cal.4th at p. 990.)
Appellant further contends for the first time on appeal that the photographic lineup procedure was unfair because the witnesses signed the back of the same photographic lineup, and thus could see the identifications made by other witnesses. However, appellant has forfeited this claim, having failed to move to exclude the photographic identifications on this ground in the trial court. (See Evid. Code, § 353; In re Michael L. (1985) 39 Cal.3d 81, 87-88.) In any event, Detective Clawson testified the witnesses did not see the back of the photographic lineup until after they had made their identifications known to him.
Even assuming the photographic lineup procedure was unduly suggestive, the witnesses’ photographic identification of appellant was nonetheless reliable under the totality of the circumstances. As discussed, the factors to be considered in determining reliability include the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, 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 crime and the identification. (Cunningham, supra, 25 Cal.4th at p. 989; Ochoa, supra, 19 Cal.4th at p. 412.) The totality of the circumstances must suggest a “‘substantial likelihood of irreparable misidentification’... to warrant reversal of a conviction on this ground. [Citation.]” (Cunningham, supra, at p. 990.) Based on our review of the record, none of the relevant factors support a finding of unreliability.
Each of the witnesses had a significant opportunity to view the shooter at the time of the offense and their degree of attention was sufficiently detailed. Although Monica Padilla only saw the shooter for four to five seconds, she had an unobstructed view of his full face and profile as she watched him run past her out the front door, before getting into the Corolla. Padilla described the shooter’s facial features and clothing in detail to police. According to Padilla, she based her photographic identification of appellant on his face, specifically the size and shape of his nose, as well as his skin color and build. Based on his photograph in the lineup, appellant’s physical characteristics are generally consistent with Padilla’s description.
As the shooter was leaving Jetro, Sergio Gasga was able to observe him for 20 to 30 seconds and from a distance of 10 to 20 feet away. Gasga also provided a detailed description of the shooter’s facial features and clothing to police. When Gasga saw appellant’s photograph, he said, it “had to be him.” He identified appellant as the shooter based on his long pointy nose, and glasses, although they were not the same glasses that appellant was wearing on the morning of the shooting. Gasga’s description is also consistent with appellant’s physical characteristics.
Ernesto Garcia watched the shooter for one or two hours inside the store, noting he “stood out” because of his behavior and was not a regular customer. Garcia, too, gave a detailed description of the shooter’s facial features and clothing to police. He identified appellant in the photographic lineup as the person who “resembles [the shooter] the closest.” Here, too, the witness’s description of the shooter was similar to appellant’s physical characteristics.
While there was a nearly four-year lapse of time between the crime and the photographic identification, when this delay is balanced against the opportunity of the witnesses to view the suspect at the time of the crime, their degree of attention, the accuracy of their individual prior descriptions of the shooter, and the level of certainty they each demonstrated at the time of the identification, we cannot say that appellant has met his burden of showing an unreliable photographic identification procedure. Moreover, because we conclude the photographic identifications of appellant were reliable and were not the result of an unduly suggestive photographic lineup, the identification procedure did not impermissibly taint the witnesses’ subsequent in-court identifications. Accordingly, the trial court did not violate appellant’s constitutional rights in admitting the identification evidence.
2. Admissibility of Evidence of the Uncharged Crime (the Costco Shooting)
a. Relevant proceedings
Prior to trial, pursuant to Evidence Code section 1101, subdivision (b), the prosecution moved to admit uncharged crimes evidence against appellant relating to the Costco shooting in 2000 to prove identity, common design or plan, and intent to kill in the Jetro shooting in 1999. The defense opposed the motion.
Following a hearing, the trial court permitted the prosecution to introduce evidence of the Costco shooting to prove identity and common design or plan, but not intent. The court precluded the prosecution from presenting evidence that bystanders were killed or injured during the Costco shooting.
b. Governing law
Evidence Code section 1101, subdivision (a), “prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) The provision clarifies, however, that it “does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (Ewoldt, supra, 7 Cal.4th at p. 393, see People v. Falsetta (1999) 21 Cal.4th 903, 914 [historically “the rule against admitting evidence of the defendant’s other bad acts to prove his present conduct was subject to far-ranging exceptions”].) “‘[E]vidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes... if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent....’” (People v. Carter (2005) 36 Cal.4th 1114, 1147 (Carter).)
Evidence Code section 1101, subdivision (a), states, “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
In addition to its relevance to an issue other than predisposition or propensity, to be admissible under Evidence Code section 1101, subdivision (b), the probative value of the evidence of uncharged crimes “must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.” (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp); Carter, supra, 36 Cal.4th at p. 1149.) We review the trial court’s determination of the admissibility of evidence of uncharged offenses for an abuse of discretion. (Kipp, at p. 369 [“[o]n appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion”]; Carter, at p. 1149.)
c. The trial court did not abuse its discretion in refusing to exclude evidence of the uncharged Costco shooting
Emphasizing what appellant insists are significant differences between the Jetro shooting and the Costco shooting, appellant contends the trial court erred in determining that the evidence was relevant to the issues of identity and common design or plan, and that its probative value was not outweighed by the probability its admission would create a serious danger of undue prejudice.
“‘To be relevant to the issue of identity, the uncharged crimes must be highly similar to the charged offenses. [Citation.] Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a “‘pattern and characteristics... so unusual and distinctive as to be like a signature.’” [Citation.] “The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.” [Citation.]’ [Citation.]” (Carter, supra, 36 Cal.4th at p. 1148.)
“A lesser degree of similarity is required to establish relevance on the issue of common design or plan. [Citation.] For this purpose, ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual’ [Citation.]” (Kipp, supra, 18 Cal.4th at p. 371.) “[I]t need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 403.) Moreover, the evidence need not demonstrate a “single, continuing conception or plot” of which the charged crimes are a part. (Id. at p. 401.) Rather, “such evidence is admissible to establish a common design or plan if the uncharged misconduct ‘shares sufficient common features with the charged offenses to support the inference that both the uncharged misconduct and the charged offenses are manifestations of a common design or plan.’” (People v. Balcom (1994) 7 Cal.4th 414, 418.)
In addition, even if the evidence is admissible under Evidence Code section 1101, subdivision (b), the trial court must exercise its discretion under Evidence Code section 352, to exclude the 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 of misleading the jury.” (Evid. Code § 352; Carter, supra, 36 Cal.4th at p. 1149.)
Here, viewing the record in the light most favorable to the trial court’s ruling (Carter, supra, 36 Cal.4th at p. 1148), both shootings involved the robbery of an armored truck security guard at a warehouse grocery store during daylight hours when customers were present. In both shootings, the shooter waited at or near the store entrance with a shopping cart and committed his crimes when the security guard and leaving the store with the money. In both shootings, the shooter was wearing a hat and glasses and armed with a gun. In both shootings, the getaway car was abandoned on the street after the crimes. Finally, in both shootings, the shooter was working with the same accomplice, Ignacio Chavez, who drove the getaway vehicle. As the trial court found, the Jetro shooting shared common features with the Costco shooting that are sufficiently distinctive to support a reasonable inference that appellant committed both shootings. These shared characteristics also show that in committing both shootings, appellant acted pursuant to a common plan to wait to commit the robbery until the security guard seemed to be the most vulnerable, when he was leaving the store alone, without the presence of his partner or store employees.
To be sure, unlike the Jetro shooting, the Costco shooting involved a botched robbery and thwarted escape after the security guard opened fire. However, these differences, in light of the many distinctive similarities, do not render evidence of the Costco shooting irrelevant on the issues of identity and common design or plan. (See e.g. Carter, supra, 36 Cal.4th at p. 1148 [“Although defendant notes certain differences in the circumstances surrounding the victims’ deaths, the combination of fatal strangulation and placement of a young woman’s body in a closed bedroom closet is both highly distinctive and suggestive that the same person perpetrated the crimes....”].) Indeed, “[t]o be highly distinctive, the charged and uncharged crimes need not be mirror images of each other.” (Ibid.) Thus, the fact that the Costco robbery differed from the Jetro shooting’s execution-style killing and clean getaway went to its weight and not to its admissibility. (Ibid.) The trial court did not abuse its discretion in concluding the evidence of the uncharged crime should not be excluded.
We similarly conclude the trial court did not abuse its discretion under Evidence Code section 352 in finding the evidence of the Costco shooting, accompanied by an appropriate limiting instruction, would not be unduly prejudicial. “‘Undue prejudice’ refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’”’” (People v. Walker (2006)139 Cal.App.4th 782, 806.)
Over a defense objection, the trial court instructed the jury with CALJIC No. 2.50, which is discussed infra.
The probative value of the evidence of the Costco shooting with respect to appellant’s identity and his common design or plan to commit the robbery was substantial. On the other side of the scale, the evidence of the uncharged crime was neither stronger nor more inflammatory than the evidence of the charged offenses; to the contrary, although the evidence included testimony that appellant fired shots at Daniel Salazar at Costco, the jury also learned nothing of the death of one customer, in marked contrast to the Jetro shooting; and the amount of evidence introduced was to the extent necessary to show the similarities between the two shootings. (See Ewoldt, supra, 7 Cal.4th at p. 405 [describing circumstances that decrease potential for prejudice].) On this record we cannot say the trial court abused its discretion in determining the substantial probative value of the evidence was not outweighed by the risk of undue prejudice. (Carter, supra, 36 Cal.4th at p. 1149.)
3. Admissibility of Evidence of Third-Party Culpability
a. Relevant proceedings
Appellant’s defense was that he was misidentified as the Jetro shooter. To bolster this defense, appellant moved to introduce evidence of other crimes, which his brother had committed with an individual whom witnesses had mistakenly identified as appellant in a photographic lineup as Ignacio’s accomplice. These crimes were originally charged against appellant and Ignacio Chavez as the special circumstances murder of Olivia De La Torre, who was shot execution-style outside a Pasadena market that she owned and operated, and at the home-invasion robbery of Virginia Tudela in Granada Hills. The prosecution dismissed these charges upon learning that appellant was incarcerated in May 2000, when the crimes purportedly occurred.
At the hearing, defense counsel gave two reasons for admitting the evidence of other crimes committed by Ignacio Chavez and an unknown accomplice: (1) To show that because witnesses in the other crimes had misidentified appellant in a photographic lineup as Ignacio’s accomplice, the witnesses in the Jetro shooting could also have misidentified appellant in the photographic lineup as Ignacio’s accomplice; and (2) to rebut the prosecution’s evidence of identity and common design or plan (the Costco shooting) by showing that Ignacio Chavez used accomplices other than appellant. In a written motion, the defense argued a third reason for admitting the proffered evidence was to show third-party culpability.
The trial court concluded the proffered evidence was not relevant. The court stated, “The fact that Ignacio Chavez committed the [De La Torre] and Tudela crimes with someone other than [appellant] does not mean that [appellant] was not involved in the [Jetro shooting] and does not mean that the other person was involved in the [Jetro shooting], to the extent it was one other person as opposed to two other people. And I think this is so particularly when the crimes are so different. [¶] The [De La Torre] crime was a robbery of an unarmed store owner at a small neighborhood market. Tudela was even farther removed in that it was a home-invasion robbery. [¶] The crime charged in count 1, the [Jetro shooting and murder of Eleazar Jaramillo], was a robbery of an armed money courier and an armored transport car at a large warehouse store. The similarity of that with the [Costco shooting] I have already address[ed] in my pretrial rulings. [¶] And furthermore the fact that witnesses in the [De La Torre] and Tudela crimes were inaccurate in their selection of photographs doesn’t have any bearing on the witnesses to the [Jetro shooting]. It doesn’t have any logical showing or any probative showing that the witnesses in the [Jetro shooting] were accurate or inaccurate. They are entirely different people.”
The trial court then found that even if the proffered evidence were relevant, it should be excluded under Evidence Code section 352, because it would entail an undue consumption of time, pose a substantial danger of prejudice and mislead the jury. The court noted, “It seems to me that the issue that the jury here must determine is whether there is evidence that [appellant] was involved in the [Jetro shooting] and to determine the reliability of the witnesses who have identified [appellant] as a participant in that crime. What happened in some other case and what was done by witnesses in some other case would be a tremendous distraction and a tremendous consumption of time as to an issue that really has no bearing on what must be decided here.”
b. Governing law
A criminal defendant has the right to present evidence of third-party culpability if the evidence is capable of raising a reasonable doubt about his or her own guilt. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) However, the admission of such evidence remains subject to the general requirement of relevance and the trial court’s discretion to exclude unduly prejudicial or confusing evidence: “‘We repeatedly have indicated that, to be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. [Citations.]’ [¶] In People v. Hall (1986) 41 Cal.3d 826, we held that ‘the third-party evidence need not show “substantial proof of a probability” that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.’ (Id. at p. 833.) ‘Our holding [in Hall] did not, however, require the indiscriminate admission of any evidence offered to prove third-party culpability. The evidence must meet minimum standards of relevance: “evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” [Citation.] We also reaffirmed that such evidence is subject to exclusion under Evidence Code section 352.”’ (People v. McWhorter (2009) 47 Cal.4th 318, 367-368 (McWhorter).)
c. The trial court did not err in excluding third-party-culpability evidence
Appellant contends the trial court abused its discretion in refusing his request to admit evidence of other crimes committed by Ignacio Chavez with an unknown accomplice, who was mistakenly identified as appellant. According to appellant, this evidence would have raised a reasonable doubt by suggesting that “an unidentified other” was the real [Jetro] shooter.” Appellant further contends evidence of his mistaken identification as an accomplice in the De La Torre murder and Tudela home-invasion robbery would have demonstrated the unreliability of photographic lineups in identifying criminal suspects.
The fact that someone mistakenly identified as appellant may have committed other crimes with appellant’s brother might initially suggest that this unknown person, rather than appellant, was Ignacio Chavez’s accomplice in the Jetro shooting. However, appellant identified no evidence actually linking this unknown person (or persons) to the commission of the Jetro shooting. We agree with the trial court that it is nothing more than speculation that an unknown person could have been involved in the Jetro shooting, rather than appellant, merely because that person (or persons) was/were mistaken for appellant in separate and unrelated crimes. The proffered evidence is simply irrelevant. (See People v. Page (2008) 44 Cal.4th 1, 37 [rejecting defendant’s claim of third-party culpability, stating, “The flaw in defendant’s theory is that the proffered evidence has no tendency to establish any relevant fact.”].)
Nor does appellant’s second argument justifying the admission of the proffered evidence required a different result. The fact that other witnesses to unrelated crimes misidentified appellant in a different photographic lineup has no bearing on the accuracy of the witnesses’ identification of appellant in the present case as the Jetro shooter or the reliability of photographic lineups in general. Because the proffered evidence has no tendency to establish any relevant fact, it was properly excluded by the trial court. (See McWhorter, supra, 47 Cal.4th at pp. 367-368.)
Appellant also asserts the trial court’s decision to admit Evidence Code section 1101, subdivision (b) evidence to prove his guilt, while excluding third-party-culpability evidence to create a reasonable doubt rendered his trial fundamentally unfair. However, because the proffered evidence was not relevant to any issues in the present case, its exclusion did not, as appellant claims, amount to a “one-sided ruling” implicating his constitutional right to present a complete defense.
Moreover, even if the proffered evidence could have raised a reasonable doubt as to appellant’s guilt, the trial court properly excluded it under Evidence Code section 352. Evidence of other crimes committed by Ignacio Chavez would have been time-consuming, as well as distracting and confusing to the jury, since they would have required, in essence, evidence concerning the commission and investigation of various crimes involving appellant’s brother and his unknown accomplice, but not appellant. Accordingly, the trial court did not abuse its discretion in refusing to admit the proffered evidence.
Appellant’s federal constitutional argument he was denied the right to present a complete defense is similarly unpersuasive. Although “[f]ew rights are more fundamental than that of an accused to present witnesses in his [or her] own defense” (Chambers v. Mississippi (1973) 410 U.S. 284, 302 [93 S.Ct. 1038, 35 L.Ed.2d 297]), evidence proffered to show third party culpability “‘may be excluded [without violating the federal Constitution] where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial.’” (Holmes v. South Carolina (2006)547 U.S. 319, 327 [126 S.Ct. 1727. 164 L.Ed.2d 503]; see also People v. Prince (2007) 40 Cal.4th 1179, 1243 [“‘[W]e... reject defendant’s various claims that the trial court’s exclusion of the proffered [third party culpability] evidence [under Evid. Code, §§ 350, 352] violated his federal constitutional rights to present a defense.... There was no error under state law, and we have long observed that, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense”’”].)
4. Challenged Jury Instructions
a. Relevant proceedings
During the discussion on jury instructions, over a defense objection, the trial court agreed to give CALJIC No. 2.06 to support the prosecution theory that appellant’s and his brother’s abandonment of the Toyota Corolla following the Jetro shooting reflected consciousness of guilt.
As read to the jury, CALJIC No. 2.06 provides: “If you find that the defendant attempted to suppress evidence against himself in any manner, such as by concealing evidence, this attempt may be considered by you as a circumstance tending to show consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
Defense counsel also objected to part of CALJIC No. 2.50, the limiting instruction on other crimes evidence (Evid. Code, § 1101, subd. (b)), arguing it was inapplicable to the facts of the present case. Specifically, counsel wanted the court to delete from the instruction the portion permitting the jury to consider evidence of other crimes for the limited purpose of determining its tendency to show “a clear connection between the other offense and the one in which the defendant is accused so that it may be inferred that if defendant committed the other offense defendant also committed the crime charged in this case.” Counsel argued this language applied only to charged and uncharged crimes that occurred close in time, reflecting a crime spree or continuous criminal activity. The court disagreed with counsel’s interpretation of CALJIC No. 2.50 and declined to delete the challenged language.
As read to the jury, CALJIC No. 2.50 provides: “Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the identity of the person who committed the crime, if any, of which the defendant is accused, or a clear connection between the other offense and the one [in] which the defendant is accused so that it may be inferred that if defendant committed the other offense defendant also committed the crime charged in this case; [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider this evidence for any other purpose.” (Emphasis added.)
b. CALJIC No. 2.06
Appellant contends there was a lack of evidentiary basis for the instruction, in that there was no showing he exercised control over the Toyota Corolla or was even present when the car was left on the street. However, the trial court did not commit prejudicial error by instructing on consciousness of guilt.
Instructions like CALJIC No. 2.06 “ma[k]e clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not itself sufficient to prove a defendant’s guilt, allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.” (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) The evidence needed to support charging the jury with CALJIC No. 2.206 need not preponderate, but only need be sufficient to support the suggested inference of consciousness of guilt. (People v. Richardson (2008) 43 Cal.4th 959, 1019-1020; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.) Here, there was evidence suggesting the Toyota Corolla, which appellant and his brother had used as the getaway car, had been left on the street for a protracted period of time. Its condition was consistent with that of a vehicle that had been abandoned by its owner or operator.
If the jury believed that appellant and his brother abandoned the getaway car following the Jetro shooting, as they did the white van after the Costco shooting, then the jury could reasonably conclude that the car was abandoned for the purpose of concealing it. Thus, the jury could have inferred consciousness of guilt. If the jury believed there was no showing that appellant and his brother abandoned the car and thereby attempted to conceal it, then CALJIC No. 2.06 did not apply.
c. CALJIC No. 2.50
Appellant renews his contention the trial court erred by instructing the jury with a portion of CALJIC No. 2.50. However, this time he argues the disputed language is inapplicable because there was no close connection in space as well as in time between the charged and uncharged crimes. Appellant points out the Jetro shooting happened in 1999 in Vernon, and the Costco shooting happened in 2000 in Van Nuys.
Even assuming appellant’s interpretation of the disputed language were correct, he is not claiming the jury was otherwise improperly instructed pursuant to CALJIC No. 2.50, that alternatively, the jury could consider evidence of the uncharged crime if it tended to show a “characteristic method, plan or scheme in the commission of the offense in this case....” Thus, even if the charged and uncharged crimes were not sufficiently connected in time and space as appellant maintains, the jury still had a basis for properly considering their probative value. Simply put, appellant has failed to demonstrate how the inclusion of the disputed language of CALJIC No. 2.50 was prejudicial.
5. Alleged Cumulative Errors
Appellant contends the cumulative effect of the errors in his trial undermined the fairness of his trial and resulted in a miscarriage of justice. Having found no errors, we reject this claim as well. (See People v. Butler (2009) 46 Cal.4th 847, 885; People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
6. Substantial Evidence
1. Governing law
To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘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.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
2. There was substantial evidence to support the conviction
Appellant contends the evidence of his identity as the shooter was too inconsistent and insubstantial to support his conviction. He is incorrect. The testimony of a single witness is sufficient to support a conviction, unless it is physically impossible or inherently incredible. (People v. Young (2005) 34 Cal.4th 1149, 1181; see also Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 [“testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears”].) Here, three witnesses, Monica Padilla, Sergio Gasga and Ernesto Garcia, each identified appellant as the shooter in a photographic lineup and in court. Notwithstanding purported inconsistencies in their descriptions of the shooter and identifications of appellant, there was nothing inherently improbable about their testimony. Having heard their individual testimony, as well as the defense expert’s testimony on eyewitness identification, the jury reasonably could believe the witnesses’ identifications were reliable. Moreover, appellant’s identity as the Jetro shooter was amply supported by the testimony of witnesses to the Costco shooting, who independently recounted similar crimes committed by appellant.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.