Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 05CF0355, Patrick Donahue, Judge.
Brent F. Romney for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendant Rogelio Luna appeals from a judgment entered after a jury found him guilty of two counts of attempted second degree robbery, two counts of assault with a firearm, and one count of conspiracy to commit robbery. The jury also found defendant personally used a firearm in the commission of those offenses.
Defendant contends the judgment must be reversed because (1) the trial court abused its discretion by ruling that in the event the defense presented character evidence showing defendant is peaceful and nonviolent, the prosecution would be permitted to present evidence of defendant’s association with certain criminal street gangs; (2) the court abused its discretion by excluding evidence of third party culpability; (3) the court erred by admitting evidence of statements defendant made to police officers before he was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (4) the court erred by instructing the jury with CALCRIM No. 315 which permitted the jury to consider a witness’s stated certainty in making an eyewitness identification; and (5) insufficient evidence identified defendant as the perpetrator of the charged crimes.
We affirm. First, defendant failed to make an adequate record that enables us to review whether the trial court’s ruling with regard to the admissibility of defendant’s gang associations to impeach his character witnesses’ testimony constituted an abuse of discretion.
Second, the record shows defendant failed to proffer “‘direct or circumstantial evidence linking’” a third person “‘to the actual perpetration’” of the charged offenses. (People v. Lewis (2001) 26 Cal.4th 334, 372.) The trial court therefore did not abuse its discretion in excluding third party culpability evidence in this case.
Third, the record shows defendant was not in custody at the time he made certain statements to the police officers immediately after the officers pulled defendant over on January 29, 2005. His rights under Miranda, therefore, were not implicated.
Fourth, the California Supreme Court has affirmed the use of CALJIC No. 2.92, which is similar to CALCRIM No. 315, in its instruction that the jury consider, in evaluating eyewitness identification testimony, “[t]he extent to which the witness is either certain or uncertain of the identification.” (CALJIC No. 2.92; see People v. Johnson (1992) 3 Cal.4th 1183, 1230-1231; People v. Wright (1988) 45 Cal.3d 1126, 1144.) The trial court, therefore, did not err by instructing the jury with the same general language in the form of CALCRIM No. 315.
Finally, substantial evidence, in the form of multiple in-court and out-of-court eyewitness identifications, supported the jury’s finding defendant was the perpetrator who committed the charged offenses.
FACTS
On Friday night, January 28, 2005, Laviza Fuentes and her 18-year-old boyfriend, Michael Sandoval, were “hanging out” at Sandoval’s grandmother’s house on St. Andrews Place in Santa Ana with Fuentes’s friend, Nancy Garcia, and Garcia’s boyfriend, Joe Sandoval. At 3:00 a.m. on January 29, the group finished watching movies, and Fuentes and Garcia left the house to go to Garcia’s aunt’s house in Orange. Michael and Joe walked Fuentes and Garcia out to their vehicles. Fuentes’s car was parked in front of the house. Garcia’s vehicle was parked across the street.
Michael Sandoval and Joe Sandoval are cousins. We refer to them by their first names to avoid confusion and intend no disrespect.
Michael walked Fuentes to the driver’s side of her car. Fuentes got into her car and began talking with Michael as he stood beside the driver’s side door of the car. After they had been talking for five or 10 minutes, a beige car pulled up; a man got out of the front passenger side of the car and approached Fuentes and Michael. At trial, Fuentes described the man as Hispanic and of average height and medium build with a bald head and thick moustache. She testified he was wearing a white hooded pullover sweatshirt and a black beanie. He pulled out a gun from his side and, holding it in his right hand, pointed it at Fuentes from a distance of “[m]aybe about two feet.” The man asked Fuentes for money. She looked in her purse but she “didn’t have anything.” Fuentes testified she was scared so she closed her eyes and put her head down. The man then pointed the gun at Michael’s side and asked him for money.
Meanwhile, Garcia and Joe were sitting in Garcia’s sport utility vehicle and talking. Garcia saw the beige car pull up and saw it was driven by a woman. Garcia saw a man wearing a white hooded sweater and dark jeans get out of the front passenger side of the car and approach Fuentes and Michael. Garcia initially thought the man was asking for directions. Garcia called Fuentes on her cell phone, but Fuentes, uncharacteristically, failed to pick up Garcia’s calls. Garcia then yelled out of her car window “Laviza, do you know this guy?”
Garcia testified the beige car began moving forward, and the man jumped in front of the car and started cursing. The lights of the beige car fell on the man so that she could “see him completely.” She testified his hood fell back and she could see he was bald. Garcia screamed, “Laviza, do you know him? Laviza, what is going on?” After Fuentes failed to answer, Garcia screamed, “hey, who are you?” The man turned around and said, “shut the ‘f’ up.” At trial, Garcia identified defendant as the man she saw that morning.
At this point, a police patrol car drove by. Officer Otilio Sanchez of the Santa Ana Police Department was on patrol, and had seen a beige four-door car drive across Bristol Street from West St. Andrews Place to East St. Andrews Place. Sanchez testified that because “[i]t was late” and “[t]here was nothing else to do,” he turned onto East St. Andrews Place behind the beige car but remained a distance away. Sanchez testified it was about 3:15 a.m. when he saw the beige car parked in the middle of the street with the passenger door open and two men standing next to a red car. He described one of the two males as “a little heavyset” and wearing a black beanie, a white long-sleeved shirt, baggy jeans, and knit gloves. Sanchez saw the heavyset person initially leaning into the red car. He saw that person stand up, look in Sanchez’s direction, and then walk around the red car and onto the sidewalk toward the passenger door of the car.
Sanchez illuminated the beige car with the intention of communicating to the driver that the car needed to move out of the street. The car moved out of the middle of the street and into a driveway. No one said anything to Sanchez or gestured to him; Sanchez drove away. Fuentes testified she did not make any movements or try to get Sanchez’s attention because “the guy had a gun.”
Fuentes testified that before the man walked toward the back of her car, he put the gun on the floor of the backseat of her car. After the patrol car drove away, the man “came back and picked up the gun from [Fuentes’s] car,” pointed it at her, and said, “today is your lucky day.”
From across the street, Garcia heard the man say, “where the fuck are you going?” and “[w]hat the fuck are you looking at, you, f’ing bitch.” As he continued to scream and use profanity, she saw him return to the beige car and get into the front passenger seat. The car then drove away.
Garcia contacted the police. At 3:21 a.m., Sanchez was dispatched to the house at St. Andrews Place. Sanchez arrived five minutes after Garcia called the police; he contacted Fuentes, Garcia and Michael. Officer Robert Romero of the Santa Ana Police Department was also dispatched to the scene to assist Sanchez. While they were near the house on St. Andrews Place, Sanchez thought he saw the same beige vehicle driving by on Bristol Street. Romero drove his patrol car in pursuit of that beige vehicle; Sanchez followed in his patrol car. Romero activated the overhead lights of the patrol car and at 3:31 a.m., pulled over the suspect vehicle which was a beige Nissan Altima.
Joe did not speak to the police officers and did not testify at trial.
Romero illuminated the vehicle, got behind his open driver’s side door, and drew his weapon. The driver, whom Sanchez described as a heavyset male wearing a long-sleeved, dark-colored shirt, baggy jeans, and a dark-colored beanie, was alone in the car. At trial, Sanchez and Romero identified defendant as the driver of the Altima. After searching defendant for weapons, Sanchez directed defendant to sit on the curb. Once Romero “clear[ed]” the car to make sure that there were not any other passengers, he reholstered his gun. In conducting a quick visual inspection of the backseat of the Altima, Sanchez saw a white long-sleeved shirt, a knit beanie, and a knit glove.
Defendant asked the officers why they had pulled him over. They told him that his car matched the description of a vehicle involved in a robbery down the street. Sanchez told defendant that a female was also involved. Defendant responded, “I had nothing to do with that, officer. You can search my car if you want to.” Sanchez asked defendant where he was coming from and defendant stated he had just dropped off his girlfriend near a 7-Eleven store, but defendant did not give Sanchez an actual location. Romero testified defendant just “[k]ept on saying ‘nearby.’” Defendant was not handcuffed at this time.
At 3:37 a.m., Sanchez returned to the house on St. Andrews Place to transport Fuentes, Garcia, and Michael to the place where the officers had pulled over the Altima to determine whether any of them could identify defendant as the man they saw that morning. Sanchez admonished Fuentes, Garcia, and Michael that the officers had detained someone and they needed them to state whether that person was involved or not involved in the events of that morning. Sanchez asked them not to speak to each other regarding any identification so that they would not influence the others.
Upon seeing the Altima, Fuentes immediately stated, “that is the car.” She was unable to positively identify defendant. She testified that she was focused on the gun and had closed her eyes at one point because she was scared.
Without hesitation, Michael identified the Altima and defendant as being involved. Michael stated, “he was 100 percent sure that was him because he looked right at him.”
Garcia told Sanchez she was “positively certain [the Altima] was the car involved.” She did not hesitate in identifying defendant as the man she had seen that morning. At trial, Garcia testified, “I know it was him the second I looked at him.”
After the identifications, Fuentes, Garcia, and Michael were transported back to St. Andrews Place. Defendant was then advised that he was under arrest and was handcuffed. The officers completed a thorough search of the Altima and found a knife.
After Sanchez arrested defendant, he asked defendant about his whereabouts that morning. Defendant initially reiterated his earlier statement that he had been with his girlfriend and had just dropped her off. After Sanchez attempted to obtain the girlfriend’s name and address to verify defendant’s story, defendant told Sanchez that he was lying about his girlfriend and he had been driving around by himself.
At trial, Fuentes was asked if she saw the man in court; she responded, “I see someone that resembles, but I’m not exactly sure” and pointed to defendant. Michael testified he could remember little of what happened the morning of January 29, he could not tell what the man he saw that morning looked like, he did not know if he identified the man at the field show-up, and he could not identify the man in court. Garcia was asked, “[t]he person that you saw that particular evening, do you see that person in court today?” She answered, “[y]es,” and identified defendant.
PROCEDURAL BACKGROUND
Defendant was charged in an amended information with (1) attempted second degree robbery of Michael in violation of Penal Code sections 664, 211, and 212.5, subdivision (c) (count 1); (2) attempted second degree robbery of Fuentes in violation of sections 664, 211, and 212.5, subdivision (c) (count 2); (3) assault with a firearm of Michael in violation of section 245, subdivision (a)(2) (count 3); (4) assault with a firearm of Fuentes in violation of section 245, subdivision (a)(2) (count 4); and (5) conspiracy to commit a crime (robbery) in violation of section 182, subdivision (a)(1) (count 5). The amended information further alleged as to counts 1 and 2, defendant personally used a firearm during the commission of those offenses within the meaning of sections 12022.53, subdivision (b), 1192.7, and 667.5; and, as to all counts, defendant personally used a firearm in the commission of the offenses within the meaning of sections 12022.5, subdivision (a), 1192.7, and 667.5.
In December 2005, defendant filed a motion to suppress, inter alia, “statements made by Mr. Luna which were the product of the illegal actions of law enforcement.” The trial court denied the motion.
In September 2006, the prosecution filed a motion in limine to limit evidence of defendant’s character to reputation or opinion and to admit evidence of his assaultive, violent, or dishonest character. In the motion, the prosecution stated: “The People intend to introduce evidence in this matter of the Defendant’s assaultive, violent, or dishonest character in the form of specific instances of conduct in the event that the defense introduces evidence that defendant has a peaceable character or is an honest law abiding citizen.” Following a hearing, the trial court ruled in a minute order: “The Court allows gang association to impeach chara[c]ter witness as to the person propensity to violence.”
The prosecution also moved to exclude evidence regarding third party culpability; the motion was granted. The court denied defendant’s motion to reconsider that ruling.
Defendant’s motion to exclude his statements based on Miranda was denied.
The jury found defendant guilty on all counts. As to counts 1 and 2, the jury found the enhancement allegation true that defendant personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). As to counts 3 through 5, the jury found the enhancement allegation true that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a).
Defendant moved for a new trial, based on the trial court’s ruling the prosecution could present evidence of defendant’s gang association in rebuttal; its ruling defendant could not present evidence of third party capability; its admission of defendant’s statements to officers after he was stopped on January 29, 2005; its instruction to the jury, based on CALCRIM No. 315; and on the ground insufficient evidence identified defendant as the perpetrator of the charged offenses. The trial court denied the motion.
The trial court sentenced defendant to a total prison term of 11 years four months. Defendant appealed.
DISCUSSION
I.
Defendant Failed to Show the Trial Court Abused Its discretion in Ruling That Evidence of Defendant’s Gang Association Might Be Used by the Prosecution for Impeachment of Defense Character Witnesses’ Testimony That Defendant Is Peaceful and Nonviolent.
Defendant contends the trial court “erred and abused its discretion when it ruled that the prosecution could present evidence that [defendant] is associated with a gang to rebut evidence presented by the defense that he is a peaceful, non-violent person who would have no propensity to commit violent acts on others.” Defendant contends the trial court also erred by ruling that the prosecution would be allowed to impeach defendant’s character witnesses with evidence of his associations with criminal street gangs. Defendant argues that but for the court’s ruling, he would have called witnesses to testify as to his peaceful, nonviolent nature and his inability to do so, in light of the court’s ruling, constituted prejudicial error.
Before trial, the prosecution filed a motion in limine under Evidence Code section 1102, subdivision (b), stating the “[d]efense has provided statements of several character witnesses, who presumably will testify that Defendant is a law-abiding, honest, non-violent, non-assaultive person.” The motion further stated, “[t]he People intend to introduce evidence in this matter of the Defendant’s assaultive, violent, or dishonest character in the form of specific instances of conduct in the event that the defense introduces evidence that defendant has a peaceable character or is an honest law abiding citizen.”
Evidence Code section 1102 provides: “In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”
In the motion, the prosecution identified several instances in which defendant had some connection to certain criminal street gangs. The motion described an October 2005 gunfight involving defendant (who was shot) and his brother Javier Luna, a documented Brownside criminal street gang member (who was killed). The motion stated the Orange County Sheriff’s Department crime lab identified gunshot residue on samples that had been collected from defendant’s hands. In addition, the prosecution discussed that after the gunfight, a police officer searched defendant’s Altima and discovered graffiti “contain[ing] various gang monikers, including the words ‘SBK.’ SBK is short for ‘Slapping Bitches Krew’ ‘Straight Blasting Krews’ ‘Spruce BlocK’ ‘Still Bustin Krew’ and ‘Smoking Bong Kronic.’”
The motion also stated that in June 2003, after responding to a “subjects smoking marijuana” call, a police officer found defendant accompanied by a Lowell Street criminal street gang member and a male who was a member of both the “‘Comps’” and SBK criminal street gangs. Finally, the motion described a January 2003 incident in which a police officer conducted a traffic stop on defendant. Defendant was accompanied at that time by a documented member of the “‘Popular Boys Tagging Crew,’” who was also an affiliate of the “‘Southside Gang.’”
On September 20, 2006, the court held a hearing to address, inter alia, the prosecution’s motion in limine. The parties’ counsel argued extensively about the prosecution’s proposed evidence regarding the gunfight. The court said that it was not convinced the prosecutor had made a sufficient offer of proof of defendant’s violent conduct during the October 2005 incident for it to be admissible to rebut evidence of defendant’s nonviolent character.
The parties’ counsel turned to address the prosecution’s proffered evidence regarding defendant’s “association and membership in SBK.” Defendant’s counsel argued that the prosecution had not turned over sufficient evidence to the defense on this point. The prosecutor argued, “if the defendant had these items in his car and the monikers there connote or promote some type of violence, which they do, and the defendant in the past has been associated with the similar tagging crew that connotes violence—the two instances that I show—there is an instance in June 2003 where defendant is in the presence, company of a person from the SBK gang who is also a member of the Comps . . . gang. Based upon all the information there and the totality of the circumstances it would be reasonable to conclude that the defendant has associations in this tagging crew that promotes or—that promotes violence. [¶] And it is the People’s belief, if the defendant associates—is a member of these particular tagging crews, then the People should be allowed to inquire into the character witnesses’ knowledge of the defendant’s associations or memberships in these tagging [c]rews that promote violence.”
The trial court responded, “I will give you both a chance to argue tomorrow. Let me look at some cases on this, but I want to—I am not going to make a ruling on it now.” After defendant’s attorney further argued that tagging crews were “people who spray paint, but they don’t promote violence,” the court stated, “What I need—and I will let you both argue tomorrow. —But what the court is going to be looking for as to whether the evidence of some type of gang—it also mentions in the offer of proof that Popular Boys Tagging Krew, at least one of these was the Southside gang. But let me take a look and see whether, number one, the gang can come in for impeachment, and what is subject to direct and cross-examination, okay?” The minute order, dated September 20, 2006, states the court took the prosecution’s motion in limine under submission.
The appellate record does not contain a reporter’s transcript for September 21, 2006. The minute order, dated September 21, states: “The Court allows gang association to impeach chara[c]ter witness as to the person propensity to violence.”
Defendant argues the trial court erred by ruling “the People could introduce evidence of the . . . specific acts that suggested gang affiliation (except the shootout evidence . . .); further, the People would be allowed to confront and cross-examine [defendant]’s character witnesses” regarding that evidence. The minute order only states gang association evidence would be permitted to impeach character witnesses. Our appellate record does not contain the transcript of the September 21, 2006 hearing which might have contained the parties’ counsel’s further argument on the issue, possible offers of proof, and the court’s explanation of its ruling permitting the use of gang association evidence to impeach character witnesses. The record does not show defendant ever sought clarification of the court’s ruling on this point, ever made an offer of proof, or ever raised the issue before resting his case.
“‘A trial court’s decision to admit or exclude evidence is reviewable for abuse of discretion.’” (People v. Williams (2006) 40 Cal.4th 287, 317.) Because defendant has failed to make a record to support his argument that the trial court abused its discretion, we find no error.
II.
The Trial Court Did Not Abuse Its Discretion by Excluding Defendant’s Proffered Third Party Culpability Evidence.
Defendant argues the trial court erred by excluding evidence of a third party’s culpability that would have been offered “to prove circumstantially that the defendant was not the assailant.”
At the hearing on whether defendant’s evidence of third party culpability should be admitted, the trial court asked defendant’s counsel about the facts he thought were relevant to the issue. Defendant’s counsel stated that on October 31, 2005 (over nine months after the charged offenses took place), Jaime Deaquino was driving a beige 1996 Plymouth Breeze four-door car when he was pulled over in Santa Ana by a police officer. The officer ran a license plate check on Deaquino’s car which showed the car was linked to an address on St. Andrews Place in Santa Ana. Deaquino is a male Hispanic with a shaved head and facial hair. Inside the car, another officer located a chrome semiautomatic firearm. Defendant’s attorney opined that Deaquino and defendant, and their respective cars, bear striking similarities in appearance.
The court asked defendant’s counsel how Deaquino was connected with the January 29, 2005 incident. Defendant’s counsel stated, “[w]ell, circumstantially we’re showing that this is another individual in the community who, because there’s no firearm ever obtained in this case, nor is there a female found in the car, and we believe that there are statements that are made by a police officer to the eye witnesses in this case that may be false in this matter, and through the investigation we’ve always felt that there was another individual out there committing this crime or doing this. Through discovery and through investigation we found another individual, the car.”
Citing People v. Lewis, supra, 26 Cal.4th 334, 372, the court ruled, “based on this incident that occurred nine months later, that this is speculative, it really doesn’t go towards a reasonable doubt of the defendant’s guilt; that the only thing linking Mr. Deaquino to this evidence, to this crime, is the fact that he lives on the street, and the court believes that because nine months later he’s in the same color sweatshirt doesn’t link him to the crime. [¶] So, that’s staying out.”
In People v. Lewis, supra, 26 Cal.4th 334, 372-373, the California Supreme Court held: “‘To be admissible, 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. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. . . . [E]vidence 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 emphasized that ‘courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible [citation] unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion [citation].’ [Citation.] A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion.” (Fn. omitted.)
Defendant made no offer of proof that Deaquino had any involvement in the charged offenses. Defendant’s proffer of third party culpability evidence was based solely on Deaquino’s physical resemblance to defendant, the similarity in appearance of Deaquino’s and defendant’s cars, Deaquino’s car’s connection to St. Andrews Place, and that nine months after the charged offenses occurred, Deaquino was pulled over in Santa Ana by a police officer and was found with a chrome firearm in his car. Defendant failed to offer “‘direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’” (People v. Lewis, supra, 26 Cal.4th at p. 372.) The trial court did not abuse its discretion in excluding the evidence.
III.
The Trial Court Did Not Err by Admitting Evidence of Defendant’s Statements Made After He Was Detained by Sanchez and Romero.
At trial, Sanchez testified that after he and Romero stopped defendant in the car, Sanchez told him “we just had a robbery down the street. Your car matches the description. I gave him the description of the male, and actually told him there was a female involved also.” The prosecutor asked Sanchez whether defendant said anything. Defendant’s counsel objected, stating, “lack of foundation, involuntariness and Miranda.” (Italics added.) The court overruled the objections. Sanchez proceeded to testify (1) defendant told him, “I had nothing to do with that. You can go in and search my car if you want”; (2) when asked where he had come from, defendant “mentioned that he had just dropped off his girlfriend somewhere near a 7-Eleven”; and (3) Sanchez asked defendant where the 7-Eleven was, but defendant “could never actually give [Sanchez] an exact location.”
The trial court thereafter held a hearing under Evidence Code section 402, outside the presence of the jury, to review the court’s initial ruling regarding the admissibility of defendant’s statements in light of Miranda. Following the hearing at which Sanchez and Romero testified, the court overruled defendant’s objections, stating: “As to the statements—and the court is going to review its ruling that it made over counsel’s objections. [¶] As to the three statements prior to Miranda, as to whether these were in custody statements, the court will use the guidelines of People versus Forster, F-O-R-S-T-E-R, 29 Cal.App.4th, 746 at 1753. [¶] The factors that that case suggest as a reasonable person whether the suspect had been formally arrested; absent formal arrest; the length of the detention, the location where the suspect was detained; the ratio of officers to suspect; the demeanor of the officers including the nature of the questioning. [¶] When the court reviews the circumstances of the three—and this pertains to the three pre-Miranda statements. —When the court looks at these factors, Mr. Luna had not been arrested. The length of the detention at the time the questions were asked w[as] relatively short. [¶] Location: He was seated on the curb. By the officer’s testimony, he was not handcuffed. [¶] The ratio of the officers: Two officers were present at the time. They said that they were busy and couldn’t get other officers there. There may have been a C.S.I. before there. [¶] The demeanor of the officers including the nature of the questioning. [¶] There was a felony car stop. There is no doubt about that. However, there wasn’t really an interrogation involved in this. [¶] These statements were not part of any part of interrogation. They were part of a cursory questioning to see if the defendant had any connection with the attempted robbery. [¶] Based upon the above, the court finds that the defendant was not in custody; that the prior ruling on the matter was correct, and the three statements are admissible. [¶] As to the voluntariness of the three statements. Those three statements, and also the voluntariness issue as to the post Miranda statements. [¶] The test on voluntariness: The statement is obtained involuntarily from a defendant when the accused’s ability to reason, comprehend or resist w[as] so disabled that he or she was incapable of free or rational choice. [¶] The court does not see any evidence that that occurred either in the pre-Miranda or post Miranda statements. And the court finds that the statements were made voluntarily. There was no evidence that Mr. Luna was incapable of free or rational choice.” (Italics added.)
Defendant contends the trial court erred by admitting evidence of statements he made to the police officers in response to the officers’ questions before he was read his rights under Miranda. Defendant argues, “the questioning of defendant began regarding where he was coming from, whom he had been with, etc. As such, the questioning amounted to custodial interrogation that is inherently coercive. . . . Since the questioning was not preceded by a Miranda advisement and waiver, defendant’s responses should have been inadmissible because a) they were obtained in violation of Miranda, and b) they were involuntary and coerced in violation of the 14th Amendment’s due process clause.”
“Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’” (Oregon v. Mathiason (1977) 429 U.S. 492, 495, italics added; see People v. Ochoa (1998) 19 Cal.4th 353, 401 [“‘Absent “custodial interrogation,” Miranda simply does not come into play’”].) “An interrogation is custodial when ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.] Whether a person is in custody is an objective test; the pertinent inquiry is whether there was ‘“‘a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’”’ [Citation.] [¶] Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court’s determination that a defendant did not undergo custodial interrogation, an appellate court must ‘apply a deferential substantial evidence standard’ [citation] to the trial court’s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, ‘a reasonable person in [the] defendant’s position would have felt free to end the questioning and leave’ [citation].” (People v. Leonard (2007) 40 Cal.4th 1370, 1400, italics added; see People v. Ochoa, supra, 19 Cal.4th at p. 402 [“‘Once the scene is . . . reconstructed, the court must apply an objective test to resolve “the ultimate inquiry”: “[was] there a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest”’”]; see also People v. Pilster (2006) 138 Cal.App.4th 1395, 1403, fn. 1 [issue under Berkemer v. McCarty (1984) 468 U.S. 420 “‘is not whether a reasonable person would believe he was not free to leave, but rather whether such a person would believe he was in police custody of the degree associated with formal arrest’”]; 2 LaFave et al., Criminal Procedure (3d ed. 2007) Interrogation and Confessions, § 6.6(c), pp. 728-729.)
In determining whether a defendant was in custody for purposes of Miranda, “[t]he totality of the circumstances surrounding an incident must be considered as a whole. [Citation.] Although no one factor is controlling, the following circumstances should be considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.’” (People v. Pilster, supra, 138 Cal.App.4th at p. 1403.) “Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview.” (Id. at pp. 1403-1404.)
Here, Sanchez and Romero were the only witnesses who testified at the Evidence Code section 402 hearing regarding the admissibility of defendant’s statements. Their testimony showed that after Sanchez spotted a car that looked like the vehicle involved in the attempted robbery, he and Romero each got into their patrol cars and followed the vehicle. As Romero was the first car behind the suspect vehicle, he activated his overhead lights. Because the driver was suspected of being involved in an armed robbery and might have been armed, Romero drew his weapon and told defendant to step out of the car; Sanchez did not draw a weapon. Sanchez and Romero directed defendant to slowly walk back to where they had taken cover behind the doors of Romero’s patrol car. Defendant complied with those directions. After Sanchez patted down defendant for weapons, he told defendant to sit on the curb. The officers did not tell defendant he was under arrest at that time and did not put handcuffs on him. Romero checked the car for passengers and found none; once Romero “clear[ed]” the car, he reholstered his gun. It was not until defendant was seated on the curb that he made the statements he sought to have excluded from trial.
The evidence showed that at the time defendant made the statements, (1) defendant had not yet been placed under formal arrest; (2) he had not been handcuffed, which is “a distinguishing feature of a formal arrest” (People v. Pilster, supra, 138 Cal.App.4th at pp. 1404-1405); (3) he had been only briefly detained (id. at p. 1404 [“Miranda warnings are not required during the course of a brief detention”]); (4) he made his statements in the setting of the sidewalk of a public street, and thus they were not made in the context of an “‘incommunicado interrogation’” (People v. Leonard, supra, 40 Cal.4th at p. 1401); (5) Sanchez and Romero were the only officers on the scene; (6) Sanchez had asked defendant only three questions; (7) although the officers were in uniform and had been driving marked patrol cars, Sanchez never drew his gun or anything else that could be used as a weapon, and Romero only drew his gun for about 20 seconds after defendant was initially stopped and submitted to a patdown search and the car was “clear[ed]”; (8) neither Sanchez nor Romero told defendant he was under arrest; and (9) neither officer made any promises of leniency or any threats, or otherwise coerced defendant to give any statements. In addition, there was no evidence (1) to suggest Sanchez or Romero was aggressive, confrontational and/or accusatory other than informing defendant that his car looked like the car involved in a robbery; or (2) defendant was told he was not free to leave.
Viewing the objective circumstances from a reasonable person’s point of view, defendant’s movement was not restricted to the degree associated with a formal arrest. In Miranda, the United States Supreme Court stated its holding was not intended to affect “[g]eneral on-the-scene questioning as to facts surrounding a crime.” (Miranda, supra, 384 U.S. at p. 477.) Here, Sanchez and Romero engaged in such general on-the-scene questioning which did not violate Miranda.
The trial court did not err by concluding that at the time defendant made the statements to the police officers while he was sitting on the curb, a reasonable person would not have believed he or she was in police custody of the degree associated with a formal arrest. Thus, evidence of defendant’s statements was properly admitted.
IV.
The Trial Court Did Not Err by Instructing the Jury with CALCRIM No. 315.
Defendant argues the trial court erred by instructing the jury with CALCRIM No. 315 which lists factors used to evaluate the testimony of eyewitnesses. He argues the instruction should have been modified to delete certainty from the list of psychological factors that may affect the accuracy of eyewitness identification. Without citing to the record, defendant argues his defense expert testified “that a witness’ ‘certainty’ as to the accuracy of his/her eye witness identification is an invalid factor and should not be considered in determining the weight to be given to eye witness testimony.” Defendant further contends, “[t]his was significant in this case because of the prosecution’s efforts to establish the ‘certainty’ of each eye witness’ identification. For example, Nancy Garcia testified that upon seeing the defendant at the car stop, she said she identified him as being the suspect and she told the officer she was sure he was the assailant.” Defendant further cites Sanchez’s testimony that at the field identification, “Garcia was certain that the car was the same and the defendant was the assailant.” Thus, he contends, the judgment must be reversed.
The jury was given CALCRIM No. 315 which was entitled “Witness Identification” and stated, as follows:
“You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.
“In evaluating identification testimony, consider the following questions:
“>Did the witness know or have contact with the defendant before the event?
“>How well could the witness see the perpetrator?
“>What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation?
“>How closely was the witness paying attention?
“>Was the witness under stress when he or she made the observation?
“>Did the witness give a description and how does that description compare to the defendant?
“>How much time passed between the event and the time when the witness identified the defendant?
“>Was the witness asked to pick the perpetrator out of a group?
“>Did the witness ever fail to identify the defendant?
“>Did the witness ever change his or her mind about the identification?
“>How certain was the witness when he or she made an identification?
“>Are the witness and the defendant of different races?
“>Were there any other circumstances affecting the witness’s ability to make an accurate identification?
“The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find . . . the defendant not guilty.” (Italics added.)
In the opening brief, defendant does not contend he ever objected to CALCRIM No. 315 in the trial court or requested that it be modified, nor does he cite to any such objection in the record. Even assuming defendant’s contention of instructional error has not been waived, defendant has failed to show error.
CALJIC No. 2.92 is similar to CALCRIM No. 315 in that it instructs the jury to consider “[t]he extent to which the witness is either certain or uncertain of the identification.” The California Supreme Court has held CALJIC No. 2.92 contains a correct statement of the law.
In People v. Wright, supra, 45 Cal.3d 1126, 1144, the California Supreme Court stated: “CALJIC No. 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” In People v. Johnson, supra, 3 Cal.4th 1183, 1230-1231, the Supreme Court stated, “CALJIC No. 2.92 normally provides sufficient guidance on the subject of eyewitness identification factors. [Citation.]” In that case, the Supreme Court rejected the defendant’s argument that the trial court erred by instructing the jury to consider the extent to which a witness was certain of the identification as a factor in assessing eyewitness testimony. (Id. at p. 1231.)
In People v. Ward (2005) 36 Cal.4th 186, 213, the Supreme Court rejected another challenge to CALJIC No. 2.92, stating: “Defendant contends the trial court erroneously included the ‘level of certainty’ factor and should have modified CALJIC No. 2.92 by adding ‘(1) when a person makes an out-of-court identification he is more likely to repeat the identification in-court and to do so with a greater level of certainty (whether or not the original identification is accurate) because he will now remember the accused from the prior lineup and his identification has been “validated” by the fact the person whom he identified has been formally accused by the government and is on trial; and, (2) when a witness is asked to make a one-person show-up (identification of the accused) in the court room, the situation is highly suggestive.’ According to defendant, the instruction and its omissions deprived him of his rights under the Eighth and Fourteenth Amendments of the federal Constitution. We find no error.”
We too find no error.
V.
Substantial Evidence Supported the Jury’s Finding Defendant Was the Perpetrator of the Charged Offenses.
Defendant contends the judgment must be reversed because there was “insufficient credible evidence” identifying him as the perpetrator of the charged offenses. As discussed post, we disagree.
In People v. Boyer (2006) 38 Cal.4th 412, 480, the California Supreme Court held: “While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.] [¶] Identification of the defendant by a single eyewitness may be sufficient to prove the defendant’s identity as the perpetrator of a crime. [Citation.] Moreover, a testifying witness’s out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant’s guilt even if the witness does not confirm it in court. [Citations.] Indeed, ‘an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification: “[T]he [out-of-court] identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind. [Citations.] . . .” [Citations.]’ [Citation.]”
Here, Garcia testified that on the morning of January 29, 2005, she identified defendant as the perpetrator at the field show-up. She testified Sanchez asked her, “are you sure?” and she responded, “yes.” Garcia commented that she remembered his eyes and the top of his head. She also identified defendant’s vehicle as “the car” without hesitation. She stated, “I know it was him the second I looked at him” without hesitation.
Sanchez corroborated Garcia’s testimony. He stated that upon transporting Garcia to the place where he and Romero had stopped defendant, Garcia said she was “positively certain that was the car involved.” Sanchez put the spotlight on defendant and Garcia identified him as the perpetrator. He testified Garcia commented she was certain defendant was the perpetrator because “he looked straight at her.” Sanchez stated Garcia did not hesitate in making the identification.
At trial, Garcia was asked, “[t]he person that you saw that particular evening, do you see that person in court today?” She answered, “[y]es” and identified defendant as the perpetrator.
As “[t]here was nothing inherently improbable about the evidence . . . offered” (People v. Boyer, supra, 38 Cal.4th at p. 480), the evidence of Garcia’s in-court and out-of-court identification of defendant was sufficient to support the finding defendant is the man who committed the charged offenses. But the record contains further evidence showing defendant was the perpetrator.
After being transported to the location where defendant had been stopped, Michael identified defendant’s car as the one involved in the attempted robbery. Sanchez testified that after he showed defendant to Michael, Michael, without hesitation, identified defendant as the perpetrator, stating “he was 100 percent sure that was him because he looked right at him.” At trial, Michael testified defendant resembled the person who pulled the firearm on him, but he did not know whether defendant was the perpetrator. Michael’s out-of-court identification of defendant also constituted substantial evidence of identification even though Michael was unable to confirm the identification at trial. (See People v. Boyer, supra, 38 Cal.4th at p. 480.)
In addition, Sanchez testified that he could not be 100 percent sure that defendant was the man he saw with Fuentes and Michael when he drove by them on January 28, 2005 because he “really didn’t get a good look at him.” Sanchez testified, however, that the perpetrator’s “build and height looked the same” and “[t]he jeans were similar and the beanie was similar.” At the field show-up, Fuentes identified defendant’s car as the car involved, but could not identify defendant as the perpetrator although “it look[ed] like it could be him.” At trial, she was asked whether she saw the person who pointed the gun at her in the courtroom. She answered, “I see someone that resembles, but I’m not exactly sure” and pointed to defendant.
In the opening brief, defendant argues there was insufficient evidence he was the perpetrator of the charged offenses because (1) the witnesses each described the perpetrator “in terms that would match a large portion of the Hispanic male population in Santa Ana”; (2) each witness described the perpetrator as wearing a white sweatshirt with a pullover hood, but, at the car stop, no such sweatshirt was found; (3) each witness stated the perpetrator held the gun in his right hand, but defendant’s mother testified defendant is left-handed; (4) Garcia told Sanchez the perpetrator’s car was a Lexus because of the emblem, but defendant was driving a Nissan Altima; (5) “[t]here was some discrepancy regarding whether the gun was black or chrome” and no gun was located on defendant or in his car; (6) Sanchez’s testimony was not credible and his conduct of transporting witnesses together for the field identification “provided ample opportunity for [Garcia] to influence the other witnesses”; (7) defendant’s expert witness’s testimony “should not be disregarded” and showed “why Nancy Garcia’s testimony should be considered very cautiously”; and (8) defendant’s conduct of withdrawing his plea of guilty and concomitant loss of a plea bargain placing him on formal probation to go to trial was inconsistent with the conduct of “an individual who had committed such a dangerous and violent act and would be expecting a state prison commitment if and when he was convicted.”
Defendant’s arguments challenge the credibility of certain trial evidence and argue about the weight that should have been given such evidence. But it is the province of the trier of fact to resolve issues of credibility of witnesses and determine the weight trial evidence should be given. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [“‘if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder’”].) As discussed ante, substantial evidence showed defendant was the person who perpetrated the charged offenses.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.