Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Donald Rudloff, Judge. (Retired judge of the Mun. Ct. for the San Diego North County Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Super.Ct.No. INF060970
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
A jury found defendant Ronnie Lee Evans guilty of carjacking (Pen. Code, § 215, subd. (a))) (count 1) and possession of a firearm by a felon (§ 12021, subd. (a)) (count 2). The jury also found true that defendant had personally used a firearm (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)) in the commission of count 1. Defendant subsequently admitted that he had suffered a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to a total term of 20 years in state prison. Defendant’s sole contention on appeal is that the trial court prejudicially erred and violated his constitutional right to present a defense by excluding a proposed defense expert witness from testifying as to the difficulty in determining between a real or replica gun. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On November 26, 2007, about 9:00 p.m., as Scott Nichols was exiting his vehicle at a gas station, defendant approached and demanded Nichols’s car keys. Nichols refused, explaining that he had to go pick up his children. When Nichols refused a second demand, defendant displayed a firearm from underneath his sweatshirt and stated, “[Y]ou don’t make me do this.” Nichols then immediately dropped his car keys and ran inside the store of the gas station. The handgun was an “older style revolver” with a wooden handle and a cylinder. Defendant picked up the keys and drove off in Nichols’s car.
Officer Luciano Colantuono was on patrol when he received a radio dispatch call concerning the carjacking. Officer Colantuono observed Nichols’s car and attempted to stop it. Defendant evaded the officer by speeding out of sight. The car was later located abandoned.
Defendant was arrested several months later after being identified from a photographic lineup. A firearm was not recovered.
II
DISCUSSION
It was alleged that in the commission of the carjacking defendant personally used a firearm within the meaning of section 12022.53, subdivision (b). Section 12001, subdivision (b) defines a “firearm” as “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” Use of a replica or toy gun not meeting this definition would not trigger the enhancement. (See People v. Jackson (1979) 92 Cal.App.3d 899, 903, fn. 7.) Section 12022.53, subdivision (b) states, in pertinent part: “The firearm need not be operable or loaded for this enhancement to apply.”
The trial court instructed the jury with Judicial Council of California Criminal Jury Instructions No. 3146, which contains the applicable definitions of “personal use” and “firearm.” The instructed stated: “A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. [¶]... [¶] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. A firearm does not need to be loaded. [¶] Someone personally uses a firearm if he or she intentionally does any of the following: [¶] 1. Displays the firearm in a menacing manner; [¶] 2. Hits someone with the weapon; [¶] OR [¶] 3. Fires the firearm. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”
When no gun is recovered, “[t]he character of [a] weapon may be shown by circumstantial evidence,” such as “testimonial descriptions of the weapon and its role in the commission of the crime....” (People v. Hayden (1973) 30 Cal.App.3d 446, 451-452, overruled on other grounds in People v. Rist (1976) 16 Cal.3d 211, 223, fn. 10.)
Defendant contends the trial court prejudicially erred and violated his constitutional right to present a defense when it denied his request to allow a defense expert to testify on the similarities between replica and real firearms, thus warranting reversal of the firearm enhancement.
Prior to trial, because no firearm had been recovered and a physical inspection of the firearm was not possible, defendant moved to call an expert on the issue of the similarities between replica and real firearms. Following argument from counsel, the trial court denied defendant’s request, noting an expert was not appropriate under these circumstances pursuant to Evidence Code section 801. The court explained, “What you’re attempting to do is come in and say I never knew anything about the weapon. I never saw the weapon, but in my expert opinion, you have to look at the weapon first to determine whether or not it is a real weapon or a fake weapon, replica weapon, whatever you want to use. And frankly I don’t think that that particular circumstance is beyond the k[e]n of the ordinary citizen.”
California law permits a person with special knowledge, skill, experience, training, or education in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (Evid. Code, § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a).)
“‘A witness is qualified to testify about a matter calling for an expert opinion if his peculiar skill, training, or experience enable him to form an opinion that will be useful to the jury.’ [Citation.] The question becomes whether the expert opinion given was helpful to the trier of fact. The reception of expert opinion testimony is within the sound discretion of the trial court. [Citation.] Even though facts may be within the knowledge or understanding of the trier of fact, the conclusions to be drawn therefrom may require expert testimony. [Citations.] ‘The decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citation.]” (People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227.)
“[T]he decision of a trial court to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ [Citation.]” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) “The exercise of discretion is not grounds for reversal unless ‘“the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’ [Citation.]” (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, abrogated on other grounds in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)
Here, we cannot conclude that the trial court abused its discretion in denying defendant’s request to admit expert testimony concerning the similarities between a real or replica firearm. It is common knowledge that replica guns look similar to real guns. The proffered expert testimony would not have assisted the trier of fact. Defendant proffered that the expert would testify as follows: “I have also had occasion to inspect and examine replica-type weapons, starter-type pistols and pellet guns that look like the real thing. [¶] These look alike. Weapons at first glance do look like the real thing but are not real or functional. [¶] The replica-type models require a close inspection to determine if they are real or replicas, because they are made with so much detail.” He went on to state that he “would say that without the complaining witness in this case, actually examining the weapon he can’t say with any level of certainty whether or not it is an actual firearm.” This testimony would not have assisted the jury in any way because ordinarily educated jurors know that replica guns look similar to real guns. That is not sufficiently beyond common experience. The conclusion might be different if the proffered testimony was that more frequently crimes are committed with the use of replica guns; however, this was not the proffered testimony of the firearm expert.
We also reject defendant’s claim that his constitutional right to present a defense was violated when the trial court excluded the firearm expert’s testimony. Defendant was not prevented from presenting the defense that he had used a replica gun rather than a real gun. In fact, defense counsel argued at length regarding the similarities between real and replica guns and that it was difficult here to determine whether defendant used a real gun without it being recovered and examined.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citations], the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” (Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142, 90 L.Ed.2d 636].) However, “[a] defendant’s right to present relevant evidence is not unlimited.... [Citations.] A defendant’s interest in presenting such evidence may thus ‘“bow to accommodate other legitimate interests in the criminal trial process.”’ [Citations.]” (United States v. Scheffer (1998) 523 U.S. 303, 308 [118 S.Ct. 1261, 140 L.Ed.2d 413], fn. omitted.) One such interest is adherence to standard rules of evidence. (Taylor v. Illinois (1988) 484 U.S. 400, 410 [108 S.Ct. 646, 98 L.Ed.2d 798]; People v. Gonzales (1994) 22 Cal.App.4th 1744, 1756.) Generally, application of ordinary rules of evidence, such as Evidence Code section 801, does not impermissibly infringe on the accused’s right to present a defense. (See People v. Snow (2003) 30 Cal.4th 43, 90.) “Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense.” (People v. Fudge (1994) 7 Cal.4th 1075, 1103; see also People v. Boyette (2002) 29 Cal.4th 381, 428.) Such was not the case here, contrary to defendant’s contention.
III
DISPOSITION
The judgment is affirmed.
We concur: GAUT J.KING J.