Opinion
E068490
10-03-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD GARCIA, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal, Randall Einhorn, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1501152) OPINION APPEAL from the Superior Court of San Bernardino County. Affirmed. John M. Tomberlin, Judge. Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal, Randall Einhorn, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Following a jury trial, defendant and appellant, Richard Garcia, was convicted of first degree residential burglary. (Pen. Code, § 459.) Defendant admitted one prior strike/prior serious felony conviction and one prison prior, and was sentenced to 14 years in prison.
Defendant's 14-year sentence consists of the middle term of four years for the burglary, doubled to eight years based on the prior strike, plus five years for the prior serious felony conviction, and one year for the prison prior. --------
The court denied defendant's request to allow Dr. Robert Shomer to testify as an expert witness on the reliability of eyewitness identifications. In this appeal, defendant claims the court abused its discretion in excluding Dr. Shomer's testimony and that the exclusion of the testimony violated defendant's due process right to present a defense.
We find no merits to these claims and affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. Prosecution Evidence
Around 10:30 a.m. on April 25, 2014, Richard Knowles, who lived in Barstow, was returning home from a walk when he observed a large black vehicle parked on the street between his driveway and the driveway of his next-door neighbor, Sherisa Clark. The vehicle was facing the wrong direction. Knowles also observed a young Hispanic woman in the driver's seat of the vehicle and a White male in the back seat behind her. A second White male came through Knowles's side gate and got into the back passenger seat.
Knowles also observed a Hispanic man walk through Clark's side gate, down her driveway, and get into the front passenger seat of the vehicle. The vehicle then drove away. Later on April 25, Detective Keith Libby showed Knowles a six-pack photographic lineup containing a photograph of defendant in the first position. Knowles told the detective that the first photograph "looked like one of the guys" he saw coming from Clark's home, but at trial, in October 2015, Knowles and Detective Libby both testified that Knowles was "hesitant, uncertain" about his identification of defendant as the Hispanic male. Knowles told the detective he did not look very well at the Hispanic male's face.
At trial in October 2015, Knowles recalled that the Hispanic male was wearing a "hoodie" and a red plaid flannel shirt, and was "a little bit buffed up" so Knowles did not want to "mess with him." Knowles testified he "got a look" at the Hispanic male, but the "detail" was "lost" to him because he was not wearing his glasses and the incident occurred quickly. Thus, at trial, Knowles did not "positive[ly]" identify defendant as the Hispanic male. But Knowles was able to read the vehicle's license plate number and called 911 shortly after the vehicle drove away. Department of Motor Vehicle records showed the vehicle was a Chevy Blazer, registered to defendant, and defendant lived in Victorville. On April 25, 2014, officers did not find defendant at his Victorville address.
The police found signs of forced entry into Clark's home, including pry marks on a side door leading into the garage and pry marks on the interior garage door leading into the home. A blue crowbar which could have made the pry marks and which did not belong to Clark was found inside the home. Latent fingerprints were taken from inside the home, but all of the fingerprints that were suitable for comparison matched Clark's fingerprints; none of them matched defendant's fingerprints.
Clark's bedroom had been "completely ransacked" and the rest of her home had been "somewhat ransacked." A watch, approximately $200 in cash, jewelry, and medical marijuana were missing. No one had permission to be in Clark's home or take her property. Clark did not know defendant. As Clark was leaving her home before the burglary on April 25, she noticed a large vehicle she had never seen before, parked on her street several houses away from hers and facing the wrong direction.
Clark returned home shortly after the burglary, accompanied by her friend, Daniella Watkins. Outside Clark's home, Knowles told Watkins that one of the suspects he saw was a White male with a "purple thing on his cheek." Watkins told Detective Libby that the description sounded like Joshua Kemp, who was "like [her] brother-in-law." Watkins also testified she had grown up with defendant, who was known as Richie, and that defendant and Kemp were "good friends." Before trial, defendant's friend Cassy contacted Watkins and asked whether Watkins would be coming to court, which made Watkins feel "[t]hreatened."
A records check on Kemp revealed he had a purple face tattoo and was wearing a global positioning system ankle monitor at the time of the burglary as a term of his "county parole" or Post-Release Community Supervision. Global positioning system records placed Kemp near Clark's home at the time of the burglary and showed that Kemp traveled from Clark's home to defendant's home in Victorville after the time of the burglary. In April 2015, around one year after the burglary, Knowles identified Kemp from a six-pack photographic lineup as the White man he saw leaving Knowles's property. In identifying Kemp, Knowles was "again uncertain" and "hesitant" about his identification, and was "confused between three of the [six] photos."
Defendant was arrested in August 2014 and later made several phone calls from jail. During one jail call with an unidentified female, defendant said: "I'm really nervous, I'm just hoping they don't have no fingerprints, if they don't then I'm going to fight that shit."
Defendant also made several jail calls to his father. He told his father that "Josh was pretty much busted. They got him there with a monitor . . . ." Defendant also mentioned that Clark's house had been processed for fingerprints, so he did not "want to keep waiving time" and "wait for fuckin something like that to come up." He said Cassie was willing to write a statement for him, and asked his father to ask Kemp's cousin, Rickie, to contact Kemp so that Kemp could make a statement saying he "had nothing to fuckin do with it."
In another jail call, defendant asked his father to "[r]ing Victoria's mom . . . and try to set up a witness, saying you know, that I was there at the house the whole time when that shit happened." Defendant's father told defendant that Kemp's aunt, Kelly, would testify that defendant was at "[Kelly's house] the whole day . . . and she didn't see, she didn't hear [defendant's] truck leave." B. Defense Evidence
In August 2015, Kemp pled guilty to the burglary in this case. At trial, Kemp testified he took defendant's Chevy Blazer while defendant was asleep at Kelly's house, and that defendant "had nothing to do with" the burglary and was not with Kemp during the burglary. Kemp said he used a blue crowbar to break into the victim's home. Shortly after the burglary, Kemp stopped by defendant's house because he was running out of gas and knew defendant had gas in his work trailer. Kemp told a defense investigator he acted alone in committing the burglary, but at trial Kemp said he did not remember whether another person was with him. Kemp had several prior felony convictions.
III. DISCUSSION
Defendant claims the trial court abused its discretion and violated his due process right to present a defense in refusing to allow Dr. Shomer to testify as a defense expert on eyewitness identifications. He claims Dr. Shomer's testimony was necessary to inform the jury of several factors bearing on the reliability of Knowles's pretrial identification of him as the Hispanic male Knowles saw leaving Clark's property following the burglary. We find no merit to these claims. A. Relevant Background
Around one week before trial, the defense informed the prosecution that it would be proffering the testimony of Dr. Robert Shomer, an expert on the psychological factors affecting the reliability of eyewitness identifications. The prosecution later filed a motion to exclude the testimony, arguing, among other things, that it should be excluded because Knowles's identification of defendant was "substantially corroborated by evidence giving it independent reliability." (People v. McDonald (1984) 37 Cal.3d 351, 377 (McDonald).)
The court deferred ruling on the motion until after Knowles and other witnesses had testified and ultimately excluded Dr. Shomer's testimony on the ground it would be unduly time-consuming and not "at all" helpful to the jury in evaluating the reliability of Knowles's eyewitness identification of defendant. The court pointed out that Dr. Shomer could not explain anything relevant about eyewitness identifications that a jury could not understand; the case was based on circumstantial evidence and Knowles's identification was not the "reasonable basis" of establishing defendant's guilt; that Knowles was "far from certain" of his identification; and any expert testimony concerning six-pack identification procedures was irrelevant because there was no evidence that Knowles's six-pack identification of defendant was "improper." The court also pointed out that, if Dr. Shomer testified, the court would be inclined to allow the prosecution to call an expert to contradict or explain Dr. Shomer's testimony. B. Applicable Law and Analysis
Expert opinion testimony is admissible on subjects that are "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a); People v. Chavez (2018) 22 Cal.App.5th 663, 680.) In particular, expert testimony concerning the reliability of eyewitness identification evidence is admissible to "inform[] the jury of certain factors that may affect such an identification in a typical case . . . ." (McDonald, supra, 37 Cal.3d at pp. 370.)
The psychological factors and other circumstances that may affect an eyewitness identification are numerous and are listed in CALCRIM No. 315, which was given in this case. These factors include whether the witness knew or had previous contact with the person the witness identified, how well the witness could see the person, whether the witness was under stress when the witness observed the person, whether the witness was asked to pick the person out of a group or from a photographic or physical lineup, how certain the witness was when the witness identified the person, whether the witness and person were of different races, and whether there were any other circumstances that affected the witness's ability to make an accurate identification of the person. (CALCRIM No. 315.)
A trial court has discretion to exclude otherwise relevant evidence if its probative value is substantially outweighed by the probability its admission will consume undue time, mislead the jury, or confuse the issues. (Evid. Code, § 352; People v. Scott (2011) 52 Cal.4th 452, 490.) Although a defendant has a "'general [constitutional] right"' to offer a defense through the testimony of his or her witnesses, a state court's exclusion of defense evidence under ordinary rules of evidence—including Evidence Code section 352—generally does not infringe upon this right. (People v. Chavez, supra, 22 Cal.App.5th at p. 681; People v. Cornwell (2005) 37 Cal.4th 50, 82.)
In McDonald, the leading California case concerning expert testimony on eyewitness identifications (People v. Jones (2003) 30 Cal.4th 1084, 1111), our state high court said: "[T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion; . . . 'we do not intend to "open the gates" to a flood of expert evidence on the subject.' [Citation.] We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court's discretion in this matter. Yet deference is not abdication. When an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony." (McDonald, supra, 37 Cal.3d at p. 377, italics added.)
Under McDonald, we review a trial court's ruling on the admissibility of expert testimony on the psychological factors affecting eyewitness identifications for an abuse of discretion. (McDonald, supra, 37 Cal.3d at p. 370.) The exclusion of such expert testimony "is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability." (People v. Jones, supra, 30 Cal.4th at p. 1112; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 290-291 ["McDonald does not apply when an eyewitness identification is 'substantially corroborated by evidence giving it independent reliability.'"].)
In determining whether other evidence substantially corroborates an eyewitness identification and gives it independent reliability, "the court looks to the body of evidence that corroborates the eyewitness identification, i.e., whether there is substantial evidence tending to show that the eyewitness identification is itself reliable, in order to assess the probative value of the expert witness testimony. If there is substantial evidence showing that the eyewitness testimony is reliable, the trial court may conclude that the probative value of the expert testimony would not outweigh any prejudicial effect caused by potential confusion of the issues and/or the amount of time that would be consumed by such testimony." (People v. Goodwillie (2007) 147 Cal.App.4th 695, 729-730.)
Here, the court did not abuse its discretion in excluding Dr. Shomer's expert testimony. As the court recognized, ample other evidence substantially corroborated Knowles's identification of defendant, giving it independent reliability and substantially reducing the probative value of Dr. Shomer's testimony. Thus, the court reasonably concluded that the probative value of Dr. Shomer's testimony was substantially outweighed by the probability its admission would consume undue court time. (Evid. Code, § 352; People v. Goodwillie, supra, 147 Cal.App.4th at pp. 729-730.)
First, other evidence showed that the "black vehicle" that Knowles saw leaving the scene of the burglary was defendant's vehicle. Knowles was able to read the vehicle's license number, and Department of Motor Vehicle records showed that the vehicle, a black Chevy Blazer, was registered to defendant. Second, a year after the burglary, Knowles accurately identified Kemp from a six-pack photographic lineup as the second man he saw getting into defendant's vehicle after the burglary.
Third, Watkins testified that Kemp and defendant were good friends, and Watkins felt threatened when another friend of defendant's contacted Watkins and asked whether Watkins would be coming to court. Fourth, Kemp pled guilty to the burglary and admitted his involvement at trial. Kemp's ankle monitor placed him at Clark's home at the time of the burglary and at defendant's home shortly after the burglary.
Fifth, defendant's jail calls showed he was concerned that fingerprints taken from Clark's home might match his fingerprints and provide the prosecution with evidence that he committed the burglary. Sixth, defendant's jail calls also showed he was trying to "set up" an alibi defense, by having several witnesses, including Kemp, say he had "nothing to do with" the burglary and was not at Clark's house at the time of the burglary.
Defendant has also not shown that exclusion of Dr. Shomer's testimony violated his due process right to present defense evidence. Because ample evidence independently corroborated Knowles's identification, Dr. Shomer's testimony was not so vital to the defense that due process principles required its admission. (People v. Goodwillie, supra, 147 Cal.App.4th at p. 725; People v. Cornwell, supra, 37 Cal.4th at p. 82.) The exclusion of Dr. Shomer's testimony did not prevent defendant from arguing that Knowles's identification was unreliable. Knowles and Detective Libby both testified that Knowles was "hesitant" and "uncertain" in his eyewitness identification of defendant. In addition, the jury was instructed pursuant to CALCRIM No. 315 on the many factors that may affect the credibility of eyewitness testimony. As the trial court emphasized, there was nothing about the reliability of Knowles's identification that a jury could not understand, or that warranted expert testimony.
Lastly, any error in excluding Dr. Shomer's expert testimony was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) We discern no reasonable probability that defendant would have realized a more favorable result if Dr. Shomer's testimony had been admitted, given that other evidence substantially corroborated Knowles's identification of defendant and the jury was instructed pursuant to CALCRIM No. 315 on the factors that may affect the credibility of an eyewitness identification.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. SLOUGH
J.