Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA089787. Jerry E. Johnson, Judge.
Charles B. Holzhauer, 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, Scott A. Taryle and Tannaz Koupainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
INTRODUCTION
The charges.
In an amended information filed on August 31, 2007, by the Los Angeles County District Attorney, appellant, Hector Orozco (“Orozco”), was charged with two counts of violation of the California Penal Code and one count of violation of the California Vehicle Code. Count 1 alleged a violation of section 215, subdivision (a), carjacking; count 3 alleged a violation of Vehicle Code section 2800.2, evading an officer with willful wanton disregard for the safety of persons and property; count 4 alleged a violation of section 12021, subdivision (a)(l), possession of a firearm by a felon; and five priors. As to count 1, it was alleged that Orozco personally used a firearm, a handgun, within the meaning of section 12022.53, subdivision (b) and that he suffered a serious felony prior conviction under section 667, subdivision (a)(1). As to all three counts, it was also alleged Orozco suffered six prior convictions under section 1170.12, subdivisions (a)-(d) and section 667, subdivisions (b) through (i). Orozco entered a plea of not guilty and asked for a jury trial.
All further statutory references are to the Penal Code unless otherwise noted.
Count 2 was omitted from the amended information.
The verdict.
The jury found Orozco guilty on all three counts on September 10, 2007. He admitted his prior convictions with one exception. He denied that one of his two alleged strike priors involved a weapon and constituted a strike under section 245, subdivision (a)(1). The prosecution moved and the court granted the motion to dismiss the disputed strike on September 11, 2007.
The sentence.
Orozco was sentenced to state prison for a total of 34 years, four months. The sentence consisted of the upper term of nine years as to count 1, which the court doubled pursuant to section 1170.12, subdivisions (a)-(d), plus ten years for the firearm enhancement under section 12022.53, subdivision (b), plus five years pursuant to section 667, subdivision (a)(1), for a total of 33 years as to count 1. As to count 3 and 4, Orozco received one-third the mid-term of two years doubled pursuant to section 1170.12, subdivisions (a)-(d). Count 3 was ordered to run consecutive to count 1 and count 4 was to run concurrently to counts 1 and 3. Orozco received custody credits of 362 days actual custody, plus 55 days of conduct credit, for a total credit of 417 days. Orozco was ordered to pay a $200 restitution fine pursuant to section 1202.4, subdivision (b) and a $200 parole revocation fine pursuant to section 1202.45.
The court imposed an illegal sentence pertaining to count 4. We note that the sentence on count 4 was to run “concurrently” to the sentence imposed on counts 1 and 3. The court, however, calculated the sentence as one-third the middle term of two years, which the court then doubled under the three strikes law pursuant to section 1170.12, subdivisions (a)-(d). Because section 1170.1, subdivision (a) applies only to subordinate terms that are imposed “consecutively,” the sentence was unlawful. Although not briefed by the appellant or the People on appeal, we correct this illegal sentence on appeal pursuant to the authority set forth by the California Supreme Court in People v. Scott (1994) 9 Cal.4th 331, 354 and People v. Smith (2001) 24 Cal.4th 849, 854, by modifying the unlawful portion of the judgment as hereafter stated.
Orozco filed a timely notice of appeal.
APPELLATE CONTENTIONS
Orozco raises three issues on appeal as follows:
1. The prosecution failed to preserve potentially exculpatory evidence, i.e. the traffic camera photograph of the carjacker, thereby violating his due process rights under Brady v. Maryland (1963) 373 U.S. 83; People v. Hitch (1974) 12 Cal.3d 641, 680 [abrogated by People v. Johnson (1989) 47 Cal.3d 1194]; California v. Trombetta, supra, 467 U.S. 479; and Arizona v. Youngblood (1988) 488 U.S. 51, 57-59;
The California Supreme Court concluded as follows in People v. Johnson, supra, 47 Cal.3d at page 1234: “Based on the foregoing, we conclude that Hitch, supra, 12 Cal.3d 641, has not survived Trombetta [(1984)] 467 U.S. 479. Under the Trombetta standard we find no error.”
2. Insufficiency of the evidence to prove Orozco had dominion and control of the gun found by the police; and
3. Trial court prejudicial error by permitting Officer Chin to testify that witness Jennifer Rios was intimidated by Orozco’s family and so changed her testimony.
FACTUAL AND PROCEDURAL SYNOPSIS
Prosecution’s evidence.
A carjacking took place around midnight on Friday, March 16, 2007 or early Saturday, March 17, 2007 at West 87th Street and Main Street in Los Angeles. Jennifer Rios sat in the driver’s seat of her boyfriend’s parked 2003 Chevy Impala. The car had dealer paper license plates on it. Her boyfriend was asleep in the front passenger seat. A white or light-skinned man came up to the car wearing dark colored clothes with a bright color on the shirt. Rios was not able to see his face. The man knocked on the window and told them to get out of the car. Rios turned her head and saw a gun. She woke her boyfriend and they got out of the car. The man then drove away. She saw the police nearby, flagged them down and told them her car had been stolen. The police drove after the carjacker.
Later that evening the police took her to view a suspect. The person she saw was not wearing the same clothes as the carjacker; the person the police showed her was wearing pajamas. She was not able to identify that person as the carjacker. She could not identify the shirt the police recovered at the scene.
Rios testified at trial the gun shown to her by the police at the scene looked bigger than the gun shown to her at trial. On the day of the incident she told the police only that the gun they showed her at the scene was big like the gun the carjacker had. She was not sure the gun shown to her at trial was the gun the carjacker used.
Los Angeles Police Officer Adrian Chin saw the carjacking take place while on routine patrol in his police cruiser. He saw a man standing at the driver’s side of a Chevy Impala banging on the window with some hard object he could not see. The man had on black pants and a black shirt with a red logo. The man had a tattoo on the back of his shaved head. Chin could not read the writing. Chin could not see the man’s face.
The driver and passenger left the car and the man got in. The police pulled behind the car and the victim yelled, ‘He took my car!’ The man in the Chevy pulled away and ran a red light and stop sign. The officers pursued with lights and siren but the driver did not stop so he called for backup. After leading the officers on a 12-mile car chase and breaking several traffic laws, the driver hit a parked SUV. The officers pulled up behind the Chevy, got out with guns drawn and ordered him out. The driver backed up and drove away. The officers lost sight of the Chevy for about two minutes, then spotted the Chevy parked behind a residence at 14893 Spinning Street with the engine running and no driver.
Officers went to 14893 Spinning Street, knocked on the front door and spoke with Mizra Santiago. She appeared frightened, her face was pale, her eyes were wide and her voice was trembling. She told officers there was an intruder in her house. As she was going through the living room to open the door for the police a person in the living room ran toward the hallway where the bedrooms were located. Mizra told the police the people who were supposed to be in the house: her husband, adult son and adult daughter. The police called their names and told them to come outside, which they did. Chin asked them if anyone else was inside; they told him no one else should be inside the house.
The police searched the house with a dog, who alerted on the last door of the bedroom. They found appellant inside the bedroom, lying face down on the bed clad only in boxer shorts. They found shoes by the glass sliding door from the kitchen to the rear yard. The police took a pair of pants from the bedroom floor and found a dark shirt with a red logo underneath the pillow where appellant had been lying. Officers discovered a semi-automatic pistol in a basket outside near the sliding door. Chin asked the Santiago family if appellant was supposed to be in the house and they said “no.” The family told the officers they knew appellant but he did not have permission to be in their home.
The police brought the victim to the scene to view appellant. She could not identify appellant but identified the shirt from the bedroom by its logo as that worn by the carjacker. She also identified the gun found in the basket as the one used by the carjacker.
Chin testified that Rios, at the preliminary hearing, felt intimidated by appellant’s relatives and friends in the courtroom. She requested a police escort back to her car. He testified he saw them driving by as they walked to the parking lot. Over defense objection he testified that they were giving ‘mad-dogging’ looks to instill fear. He did not hear any verbal threats by the family toward Rios.
Mizra Santiago testified she told the police she thought she saw a figure coming from the back door. However, she denied telling the police there was someone in her house who did not belong. She had known appellant and his family for more than 10 years. She did not recall seeing appellant in her house that day. She did not tell the police appellant was in her house. No one in her household owned a gun. Mrs. Santiago did not invite appellant to sleep over that night.
Defenseevidence.
Appellant’s defense at trial was identity. Chin did not state in his report or at the preliminary hearing that the carjacker had a tattoo. He did not see the carjacker’s face before removing appellant from the bedroom. Chin did not put in his report or mention at the preliminary hearing that the carjacker wore a black shirt with a red logo. The police did not try to see if the shoes they found by the sliding door fit appellant. The police did not ask appellant to try on the pants found in the bedroom. The Santiago family told Chin they knew appellant. Chin did not state in his police report he questioned the family regarding the gun found in the basket outside.
Jaquiline Santiago testified appellant had been to their house ‘quite a bit’ and had spent the night at their house. Appellant is a good friend of her brother and father. There had been a barbeque at the Santiago home in the afternoon and evening before the police showed up. She saw appellant at the barbeque. When the police called everyone out of the house she did not know whether or not appellant was inside their house.
Glen Willett, a private investigator, hired by appellant testified that in the Santiagos’ backyard, there was a six-foot block wall, and that there was at least one, maybe two, dogs in the backyard, one of which nipped at his ankle. Willett also testified that he was not at the property on the night of the incident, and had no knowledge of whether or not the dogs were present.
Christopher Sanchez was at the barbeque at the Santiago residence earlier that day. He took a gun to the barbeque. This was the gun found by the police in the basket in the rear yard. Chris got the gun at a swap meet. At the barbeque he spoke with Armando Santiago about the gun. He put it in the basket next to the back door of the house because Armando said he would get rid of it for Chris. Chris wanted to get rid of it because it did not work. He tried shooting it at the beach and it jammed. At about 11:00 or 11:30 p.m. Chris saw appellant go inside the house with Armando because appellant had had a little bit too much to drink. Chris met appellant about a year before. He paid $250.00 in cash for the gun.
DISCUSSION
We address the three contentions raised by appellant seriatim:
Brady error.
Orozco contends his Fourth, Fifth, Sixth, Eighth and Fourteenth amendment rights were violated because the prosecution failed to preserve a traffic light photograph. We disagree.
At the beginning of the trial, the following colloquy occurred among counsel and the court:
“[Prosecution]: Finally, during the car chase the [appellant] ran a red light where supposedly there was a traffic camera that the officer believed snapped their picture as they went through this red light. Counsel had timely requested it; the People timely attempted to get it; it had been purged through the system. I don’t have that photograph; the defense doesn’t have that photograph. Apparently unless you get it sort of within the first couple weeks of when it happened, there’s a problem obtaining it thereafter. So I don’t intend on getting into that, and I’d ask that the defense be precluded from raising that as an issue.
“[Court]: I don’t pretend to know what’s in the mind of counsel. If there’s some creative reason for that to be brought up that I’ve not been able to think of, I certainly would love to hear it, and then I can make a ruling at the time, but it would appear from what you’ve said that that may not be something that should be brought up. But if counsel can think of a really good reason to do it, I’m willing to listen.
“[Defense]: Not really, it cuts both ways.”
Following his conviction, Orozco made a motion for a new trial on three grounds, namely, jury misconduct, prosecutorial misconduct, and newly discovered evidence. The prosecutorial misconduct ground included failure to preserve evidence. The prosecution argued as follows:
“As to the next ground that’s listed in the motion, prosecutorial misconduct, I know that counsel cites in the motion Trombetta and Youngblood, and both those cases require that there be some showing that the government had malintent, or there was some sort of intentional misconduct. [¶] As the court may recall from my 402 motion in this case before trial, I addressed that issue specifically with the court. I advised that during the course of this felony evasion there was apparently a red light that was run. The police officer in his initial report indicated that there may have been a flashbulb that went off indicating there was a camera at that stop. [¶] We attempted, based on the defense’s request–and actually outside of the defense’s request–we were unable to obtain that video. They are a quick turnaround in terms of they record over each other, much like surveillance cameras at liquor stores and Target, as I’m sure the court’s seen over the course of sitting on the bench. [¶] We were unable to get this tape, neither side was able to use it. I brought that up in that nobody be allowed to make mention of it. [¶] There was no comment as to prosecutorial misconduct at that point, neither side was able to use it, and no bad intent on the part of the government has been shown in the defense motion.”
After both sides submitted on the motion, the court replied: “To address the evidentiary question, the second issue you mentioned about the photograph, that didn’t exist at the time of trial. It was not the District Attorney or the prosecution’s fault, and I don’t see how that can be–it just wasn’t available.” The court went on to declare: “[T]he fact that it’s not available and it was not the prosecution’s fault in any fashion, either intentional or accidental, it was just not available. [¶] The worth of the evidence, or the value of the evidence is just conjecture, no one knows what’s on it, so there’s no way to determine that; that’s just an assumption on the part of your argument, counsel. [¶] So I’ll deny it based on that argument.”
The relevant law.
The People contend, and we agree, the relevant law on failure of the prosecution to preserve exculpatory evidence follows. Orozco does not contend otherwise. “Law enforcement agencies must preserve evidence only if it possesses exculpatory value ‘apparent before [it] was destroyed,’ and not obtainable ‘by other reasonably available means.’ (California v. Trombetta[, supra, ] 467 U.S. 479, 489; cf. Brady v. Maryland[, supra, ] 373 U.S. 83, 87 [prosecutorial duty to disclose evidence that is both ‘favorable’ and ‘material’ to the defense].) The state’s responsibility is further limited when the defendant challenges the failure to preserve evidence ‘of which no more can be said than that it could have been subjected to tests’ that might have helped the defense. (Arizona v. Youngblood[, supra, ] 488 U.S. 51, 57 (Youngblood).) In such a case, unless the defendant can show ‘bad faith’ by the police, failure to preserve ‘potentially useful evidence’ does not violate his due process rights. (Id. at p. 58.)” (People v. DePriest (2007) 42 Cal.4th 1, 41-42.)
Orozco’s contentions include a claim of purported ineffective assistance of counsel for failure to take immediate action to guarantee that the photograph would be preserved; failing to object to the prosecution’s failure to preserve the photograph; failing to request discovery sanctions; and neglecting to make a suppression motion under section 1538.5, subdivision (h) based on the prosecution’s failure to preserve the photograph.
The People respond that Orozco fails to explain exactly what evidence should have been suppressed as a result of the alleged failure to preserve the photograph. The People further contend that at the evidentiary hearing, prior to trial, both the prosecution and defense counsel agreed to be precluded from raising the ability to obtain the photograph as an issue during trial. Additionally, the People point out that defense counsel stated for the record that the ability to mention the photograph during trial “cuts both ways.” Defense counsel was agreeing to preclude both sides from presenting this information at trial because it could have been detrimental to Orozco. We find Orozco’s contention that defense counsel was ineffective for failure to make a suppression motion is meritless. The issue of the photograph was not raised during trial, as agreed to by both sides. The record is clear that trial counsel was fearful that the photograph would contain evidence detrimental to his client. This was an apparent tactical decision of trial counsel which we refrain from second guessing.
Insufficiency of the evidence to support a conviction for possession of a firearm by a felon.
Orozco’s second contention challenges the sufficiency of the evidence indicating he had dominion and control of the gun found by the police or had knowledge of its presence.
Standard of review.
The People’s contention pertaining to the standard of review follows. This court is in agreement. Orozco does not contend otherwise.
“When a challenge is made to the sufficiency of evidence, the reviewing court views the evidence in the light most favorable to the judgment. (People v. Koontz (2002) 27 Cal.4th 1041, 1078; In re Jose P. (2003) 106 Cal.App.4th 458, 466.) The question on appeal is whether any rational trier of fact could have found the elements beyond a reasonable doubt, and conflicts in the evidence, or even testimony subject to justifiable suspicion, do not warrant reversal, since it is the exclusive province of the jury to determine the credibility of witnesses and the truth or falsity of the facts. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Boyer (2006) 38 Cal.4th 412, 480; People v. Carter (2005) 36 Cal.4th 1114, 1156.)
“The appellate court need not be convinced the evidence proves guilt beyond a reasonable doubt but must merely determine whether any rational jury could be so persuaded. (People v. Perez (1992) 2 Cal.4th 1117, 1126; People v. Johnson (1980) 26 Cal.3d 557, 576-577.) If the circumstances reasonably justify the jury’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054; People v. Stanley (1995) 10 Cal.4th 764, 793.) The reviewing court must accord due deference to the jury and not substitute its evaluation of a witness’s credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
“‘The standard of review is the same when the People rely mainly on circumstantial evidence.’ (People v. Sanchez (1995) 12 Cal.4th 1, 32; see also People v. Stanley, supra, 10 Cal.4th at p. 793; People v. Ceja (1993) 4 Cal.4th 1134, 1138.) Circumstantial evidence alone may be sufficient to prove a defendant guilty beyond a reasonable doubt. (People v. Bean (1988) 46 Cal.3d 919, 932-933; People v. Vu (200[6]) 143 Cal.App.4th 1009, 1024.)”
Disapproved of in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22 on an unrelated point.
Substantial evidence supports Orozco’s conviction.
Before applying the standard to the facts of this case, we further examine the applicable law pertaining to Orozco’s contention that substantial evidence is lacking to prove he possessed a firearm within the meaning of section 12021, subdivision (a)(1). The People’s statement of the applicable law on this issue follows. This court agrees with the People’s statement. Orozco takes no contrary view on the law to be applied in determining whether he had dominion and control of the gun found by the police.
“As relevant on appeal, appellant was convicted of one count of possession of a firearm by a felon. Section 12021, subdivision (a)(1) prohibits a convicted felon from owning, possessing, or having custody of a firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) The possession element of the crime requires that the defendant knew of the weapon’s presence and exercised dominion and control over it, however briefly. (People v. Pena (1999) 74 Cal.App.4th 1078, 1083.) The possession may be actual or constructive, but must also be knowing and intentional. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130; People v. Jeffers, supra, 41 Cal.App.4th at p. 922.)
“A defendant has actual possession of a firearm when it is in his immediate possession or control. He has constructive possession when, although not in his actual possession, the weapon is under his dominion and control, either directly or through others. (People v. Pena, supra, 74 Cal.App.4th at pp. 1083-1084; People v. Jeffers, supra, 41 Cal.App.4th at pp. 923-925.) Exclusive possession of the weapon or exclusive access to the place where it was found is not required. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Rather, constructive possession may be found when contraband is discovered in a place to which the defendant and others have access and over which none has exclusive control. (People v. Hutchinson (1969) 71 Cal.2d 342, 345.) But mere presence at the place where contraband is found, or proof of opportunity of access to a place where contraband is found, without more, will not support a finding of possession. (Id. at p. 346.) Possession may be proven by circumstantial evidence and the reasonable inferences to be drawn therefrom. (People v. Rushing, supra, 209 Cal.App.3d at pp. 621-622.)
We now examine the conflicting evidence and conclude substantial evidence supports the judgment on this issue. In reaching our conclusion, we deem it prudent to set forth a summary of the evidence presented by each party to this appeal.
Orozco’s summary of the evidence.
“Appellant’s defense at trial was identity.... Chin did not state in his report or at the preliminary hearing that the carjacker had a tattoo.... He did not see the carjacker’s face before removing appellant from the bedroom.... Chin did not put in his report or mention at the preliminary hearing that the carjacker wore a black shirt with a red logo.... The police did not try to see if the shoes they found by the sliding door fit appellant.... The police did not ask appellant to try on the pants found in the bedroom.... The Santiago family told Chin they knew appellant.... Chin did not state in his police report he questioned the family regarding the gun found in the basket outside....
“Jaquiline Santiago testified appellant had been to their house ‘quite a bit’ and had spent the night at their house.... Appellant is a good friend of her brother and father.... There had been a barbeque at the Santiago home in the afternoon and evening before the police showed up.... She saw appellant at the barbeque.... When the police called everyone out of the house she did not know whether or not appellant was inside their house....
“Christopher Sanchez was at the barbeque at the Santiago residence earlier that day.... He took a gun to the barbeque. This was the gun found by the police in the basket in the rear yard. Chris got the gun at a swap meet.... At the barbeque he spoke with Armando Santiago about the gun. He put it in the basket next to the back door of the house because Armando said he would get rid of it for Chris. Chris wanted to get rid of it because it did not work. He tried shooting it at the beach and it jammed.... At about 11:00 or 11:30 p.m. Chris saw appellant go inside the house with Armando because appellant had had a little bit too much to drink.... Chris met appellant about a year before.... He paid $250.00 in cash for the gun....”
The People’s summary of the evidence.
“Officer Chin saw appellant banging on the window of the car with a hard object, which Rios testified was a handgun.... After a 12-mile car chase, Officers then recovered a loaded handgun in the rear of the Santiagos’ backyard, inside a plant basket by the rear sliding-glass door, which Rios subsequently identified at the Santiagos’ home, as the gun used by the carjacker.... Both Jaquiline and Mizra Santiago also testified that no one in the household owned a gun.”
We observe that the jury, in considering the evidence as summarized by each party as aforementioned, could have reasonably decided for either side on this issue. The jury rendered its verdict in favor of the People however. Our jurisdiction on appeal is to determine whether any rational jury could be persuaded by the evidence. We are persuaded that considering the evidence adduced by the People and summarized as indicated supra, the jury in this case could be and was rational in rendering a verdict against Orozco on this issue.
Evidence regarding witness intimidation.
The third and last contention by Orozco is more problematic but in the final analysis is appropriately resolved against Orozco on the merits. But even if we were to find legal error, the principle of harmless error would preserve the judgment. The gravamen of Orozco’s claim of prejudicial error is to be found in the testimony of Officer Adrian Chin. The testimony, as we understand it, concerned the phenomenon of “mad-dogging.” During the trial, the prosecution, over defense objection, questioned Rios about asking for a police escort because she was allegedly afraid of persons she assumed were Orozco’s family. The prosecution also questioned Rios about a person from the District Attorney’s office who provided her with a ride to court on the day of trial. The prosecution also questioned Chin, over defense objection, about Rios allegedly being subjected to witness intimidation and the gang practice of “mad-dogging.”
Orozco’s summary of evidence and argument.
In support of his argument that reversible error was committed by the trial court on this issue, Orozco summarizes the evidence and argues as follows: “The prosecution, over defense objection..., questioned Rios about asking for a police escort because she was allegedly afraid of people she assumed were appellant’s family.... The prosecution also questioned Rios about a person from the District Attorney’s office providing her a ride to court on the day of trial.... [¶] The prosecution also questioned Chin, over defense objection..., about Rios allegedly being subject to witness intimidation and the gang practice of ‘mad-dogging.’... The prosecution offered the evidence to show Rios allegedly changed her testimony at trial. The trial court allowed the testimony....”
Finally, Orozco argues that “‘Officer Chin’s testimony about alleged witness intimidation by unknown persons in this non-gang case was substantially more prejudicial than probative and violated [his] right to a fair trial.’...”
People’s summary of evidence and argument.
In urging this court to find no reversible error, the People make the following arguments:
“Appellant contends that the trial court erred in permitting the prosecution to introduce witness testimony concerning witness intimidation by appellant’s family and friends towards the victim and that the evidence was more prejudicial than probative.... Respondent disagrees. The trial court properly admitted the evidence because it was highly relevant to show that the victim, Rios, was afraid at trial, and thus was unable to identify appellant’s shirt and the gun, both of which she had identified on the night of the carjacking.
“Officer Chin testified that when Rios was brought to the Santiago home, she was unable to identify appellant, but was able to identify his black shirt (because of the red logo) and the gun.... However, at trial, Rios was only able to testify that the carjacker wore a dark shirt with a bright color logo, and could not definitively identify the gun during the trial.... To explain this change in demeanor, at trial, the prosecution questioned both Officer Chin and Rios as to the events surrounding the preliminary hearing. Officer Chin and Rios both testified that during the preliminary hearing, Rios became nervous and intimidated at the way appellant’s family and friend’s [sic] looked at her in the courtroom, and so she asked the officers to escort her back to her car....”
The standard of review is abuse of discretion.
We do not perceive any concerns by Orozco, or for that matter by this court, pertaining to the applicable law on abuse of discretion as stated by the People as follows: “A trial court has broad discretion in determining the admissibility of evidence. (People v. Williams (1997) 16 Cal.4th 153, 196-197.) On appeal, a trial court’s decision on admissibility of evidence is reviewed only for an abuse of discretion. (Id. at p. 197; People v. Rodrigues (1994) 8 Cal.4th 1060, 1167; People v. Clair (1992) 2 Cal.4th 629, 676.)
“Subject to codified exceptions, all relevant evidence is admissible. (Evid. Code, §§ 350, 351.) ‘“Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ (Evid. Code, § 210.) The trial court has broad discretion in determining the relevance of evidence. (People v. Scheid (1997) 16 Cal.4th 1, 14; People v. Crittenden (1994) 9 Cal.4th 83, 132.)
“Evidence Code section 352 states: ‘The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’
“The trial court has considerable and wide discretion under Evidence Code section 352, and the court’s determination will not be disturbed on appeal unless a clear abuse of discretion is shown. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226; People v. Jacobs (1987) 195 Cal.App.3d 1636, 1656.)
“‘Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.]’ (People v. Burgener (2003) 29 Cal.4th 833, 869; see People v. Malone (1988) 47 Cal.3d 1, 30; People v. Warren (1988) 45 Cal.3d 471, 481; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450; People v. Gutierrez [(1994)] 23 Cal.App.4th [1576,] 1587-1588; Evid. Code, § 780.) ‘A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony.’ (People v. Olguin, supra, 31 Cal.App.4th at p. 1368, original italics.)
“To be admissible, it is unnecessary to show that threats against a witness were personally made by the defendant, or that a witness’s fear of retaliation is directly linked to the defendant. (People v. Sanchez [(1997)] 58 Cal.App.4th [1435,] 1450.) Moreover, ‘[t]here is no requirement... that threats be corroborated before they be admitted to reflect on the witness’s credibility.’ (People v. Burgener, supra, 29 Cal.4th at p. 869.)
In support of their argument, the People summarize the evidence on this issue and argue as follows: “Officer Chin testified that when Rios was brought to the Santiago home, she was unable to identify appellant, but was able to identify his black shirt (because of the red logo) and the gun.... However, at trial, Rios was only able to testify that the carjacker wore a dark shirt with a bright color logo, and could not definitively identify the gun during the trial.... To explain this change in demeanor, at trial, the prosecution questioned both Officer Chin and Rios as to the events surrounding the preliminary hearing. Officer Chin and Rios both testified that during the preliminary hearing, Rios became nervous and intimidated at the way appellant’s family and friends looked at her in the courtroom, and so she asked the officers to escort her back to her car....
We discern that the prosecution was clearly trying to show that Rios was afraid to testify. The evidence was without a doubt relevant to Rios’ credibility and her testimony. The evidence was accordingly admissible.
The Trial Court Did Not Abuse Its Discretion In Admitting Expert Opinion Evidence Of Witness Intimidation; Any Purported Error Was Harmless.
Orozco’s final contention is that Officer Chin’s testimony about “mad-dogging” was improper expert testimony making his conviction reversible because the trial court committed error in admitting prejudicial expert testimony.
The relevant law.
As stated by the People, without opposition by Orozco and with the agreement of this court, “[t]he trial court has broad discretion to admit opinion evidence. The appellate court reviews the trial court’s determinations under an abuse of discretion standard. (People v. Farnam (2002) 28 Cal.4th 107, 153-154.) [¶] Lay opinion testimony is governed by Evidence Code section 800, which states: ‘If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.’”
The relevant facts.
Again, we deem it prudent to set forth a summary of the evidence by each party to this appeal.
Orozco’s summary of evidence and argument.
“Rios testified she was not afraid when she was in court for the preliminary hearing nor was she afraid at trial. No one threatened her. (Emphasis deleted.)
“The evidence that Rios allegedly ‘changed’ her testimony was minimal. She testified at trial she told Chin at the scene the gun looked like the one the carjacker had. Rios testified she could not say for sure the gun introduced as evidence was the one used by the carjacker. Chin testified she had identified the gun at the scene. She could not recognize the clothes seized by police from the bedroom where they arrested appellant. Chin testified she identified the clothes at trial. The perpetrator was white or light-skinned, according to Rios’ trial testimony. According to Chin, Rios told her the carjacker had been Hispanic.
People’s summary of evidence and argument.
The People summarize the facts on this issue as follows: “Officer Chin testified that at the preliminary hearing, Rios requested an escort to her car because she had told him that she felt intimidated by some of appellant’s family and friends in the courtroom. Officer Chin testified that he did not observe the intimidation, but did observe appellant’s family and friends drive by in the court parking lot and witnessed them giving Rios ‘looks.’... When asked by the prosecution what kind of looks they were, ‘Winking? Blinking? Smiling? There’s a term called “mad-dogging,”’ Officer Chin replied that he would consider the family looks to ‘be a mad-dog type look.’... The prosecution asked Officer Chin to explain the term, ‘mad-dog’ and after the court overruled defense counsel’s objection for foundation, Officer Chin stated: ‘[a] mad-dog type look is when you look at somebody without saying anything and you try to instill fear just by looking at them with the look of their face at yours.’...”
“Here, the trial court reasonably allowed the challenged evidence, over defense’s objection. The testimony was that Officer Chin saw appellant’s family giving Rios looks, which he characterized as “mad-dogging,” and then explained that a “mad-dog” type look was a look used to instill fear. This was permissible lay opinion testimony. It was rationally based on Officer Chin’s perception, and was helpful to the trier of fact in understanding the type of look he saw appellant’s family give Rios. (Evid. Code § 800.)
We find no abuse of discretion by the trial court’s admitting evidence of witness intimidation. This court finds the prosecution’s summary of evidence and argument thereon to be persuasive on the issue. Assuming arguendo the trial court erroneously admitted Officer Chin’s lay opinion about the type of look that appellant’s family gave Rios, reversal is unwarranted because a different verdict would not have been reasonably probable had the opinion been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836 [error harmless unless it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].) Even had his opinion been excluded, jurors had already heard Rios’ own testimony that the family gave her looks that caused her to become nervous, enough so that she requested an escort to her car. That testimony was brief, and Officer Chin acknowledged that he had witnessed no verbal threats by the family. The rest of the evidence contained in the prosecution’s evidence under the major heading “Factual and Procedural Synopsis,” supra, convinces this court that it is not reasonably probable that Orozco would have obtained a more favorable result had the evidence been excluded. In particular, Officer Chin saw a man wearing black pants and a distinctive black shirt with a red logo, carjack a Chevy Impala with equally distinctive dealer-issued paper license plates. Officer Chin pursued that car to a location directly behind the Santiago’s house. Mirza Santiago saw an intruder enter her house, and appellant was found inexplicably lying on a bed in a bedroom of that house, in his underwear, with a pair of black pants by the bed, and the same black shirt with a red logo under the pillow. A gun identified as the one used in the crime was found in the backyard – the area that appellant would have crossed while fleeing from the Impala into the house. The evidence of appellant’s identity was compelling. Thus, reversal is not warranted.
DISPOSITION
We vacate the unauthorized sentence on count 4 and correct it to reflect imposition of the full two-year middle term to run concurrently with count 1 (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3), and order the trial court to amend the court minutes and abstract of judgment accordingly; the clerk is to then forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
We concur: PERLUSS, P. J. ZELON, J.