Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07901471. Edward Sarkisian, Jr., Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen J. Herndon and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P.J.
Defendant Rudy Manuel Uribe was tried for three counts of second degree robbery. The jury acquitted him of one count and convicted him of two counts. In addition, the trial court found that defendant suffered a prior serious felony conviction (strike) and served two prior prison terms. He appeals, arguing the photographic lineup procedure was unduly suggestive and impermissibly tainted the in-court identifications. He also claims the trial court abused its discretion when it reopened the case during the jury’s deliberations to allow the jury to view tattoos on his wrists and forearms. We affirm.
FACTS
Andre Torigian, Sr., owned and operated Flying Andre’s Gas at the corner of Blackstone and Ashlan Avenues in Fresno. On February 12, 2007, Torigian Sr. was waiting on a customer outside of the store portion of the station when defendant walked inside the gas station store. Andre Torigian, Jr., owned the cigarette store attached to his father’s gas station. Torigian Jr. kept an eye on the gas station when he saw his father outside. He was alerted by a beep that someone had entered the store, and he went to assist the person since his father was busy outside.
When Torigian Jr. entered the store, defendant was trying to open the cash register with a screwdriver. Torigian Jr. asked defendant what he was doing, and defendant walked to the other side of the counter. Torigian Sr. entered the store and defendant bought a package of cigarettes from him. Defendant left the store and got into the passenger seat of a car waiting outside. Torigian Jr. wrote down the license plate number of the car and called the police. Torigian Sr. declined to press charges regarding this incident.
Police traced the license plate of the vehicle that left Flying Andre’s Gas and found that it belonged to the mother of Diem Truong, defendant’s girlfriend. Truong testified that she began dating defendant in early February. She drove him to the gas station at Blackstone and Ashlan because he wanted cigarettes.
Also on February 12, 2007, Angeline Brewer was working alone as the cashier at a Shell station on the corner of Blackstone and Dakota Avenues. That intersection is a short distance from where Blackstone Avenue intersects with Ashlan Avenue. Sometime after 8 p.m., defendant came into the store with another person. Brewer asked if she could help him, but defendant said he did not need help as he was waiting for the other person. Defendant left with the other person and then defendant returned to the store by himself.
Defendant went behind the counter, and Brewer told him he could not be behind the counter. Defendant told Brewer to give him all of the money. Defendant’s right hand was held down and his hand was covered. Brewer assumed he had a weapon. Defendant asked Brewer for her cellular telephone; she said she did not have one. At some point defendant asked Brewer for the store telephone and she gave it to him. Defendant told Brewer to lie down; she did. Defendant then told her to get up and open the register. While the robbery was taking place, Courtney Mendij entered the store while talking on her cellular telephone. Defendant yelled at her to get out. It appeared to Brewer that Mendij was under the influence of drugs. Mendij left the store.
Defendant took the money and asked for the store telephone. Brewer said she had already given it to him. Defendant left and Brewer called the police. Brewer described defendant as a Hispanic male with a light complexion, approximately 35 years old, standing five feet seven to five feet eight inches tall, and weighing approximately 180 pounds. She said he was wearing a dark knit cap and had no facial hair.
Security cameras captured the robbery on tape. This tape was played for the jury. Defendant was found guilty in count 3 of the robbery of Brewer at the Shell station.
On February 13, 2007, Mary DelaGarza was the nightshift manager of the Subway restaurant on Ashlan and Blackstone Avenues. She was working with two other employees, Willie May Oliver Surrel and Amanda Goodmon. DelaGarza was behind the counter when she heard the bell sound, which indicates someone has opened the door to enter the restaurant. Defendant walked up to the register and stopped. Defendant was holding a gun down by his side. He moved the gun up and held it to the back of Surrel’s head and started asking for money. DelaGarza moved towards the register. Defendant demanded the money and told DelaGarza to hurry up. DelaGarza handed defendant the currency, and he reached over and took the coins out of the register. Defendant asked for the telephone, and DelaGarza handed it to him. He yanked the cord from the telephone and threw it on the floor. He turned around and left.
DelaGarza described defendant as a Hispanic male in his early 30’s, approximately five feet six inches tall and with a medium build. Defendant was wearing a beanie pulled to his eyebrows and had a light, unshaven mustache similar to a day’s worth of growth. Defendant was found guilty in count 2 of the robbery of DelaGarza at the Subway restaurant.
On February 14, 2007, at approximately 11 a.m. Malkiat Nagra was working at Andre’s Liquor store. A man came in with a gun. He came behind the counter and asked Nagra to open the register. She was told to lie down, then told to stand up and give him the telephone. She was ordered to move to the back of the store. The man took money from the register.
Nagra described her assailant as a Hispanic male between the ages of 18 and 25, with a short goatee, five feet eight to five feet nine inches tall and weighing between 140 pounds and 160 pounds. He had a cap on and was armed with a large semiautomatic pistol. Defendant was acquitted of this robbery in count 1.
Although defendant was acquitted of the robbery at the liquor store, some facts for this count are included because they are relevant to the investigation and the identification of defendant in the other crimes.
Defendant was arrested on a parole violation the afternoon of February 14, 2007. At the time of his arrest, defendant was living with his sister in an apartment that was only 200 yards from where the string of robberies took place. A pellet gun (exhibit 67) and a beanie were found in the apartment.
Defendant’s sister testified that the gun belonged to a friend of her son and she never saw defendant touch the gun. At trial, DelaGarza said the gun and beanie seized from the apartment looked like the gun and beanie used during the robbery at the Subway restaurant, although she could not say for certain that the gun shown to her at trial was the gun used on February 13, 2007, by defendant. Surrel said the gun (exhibit 67) did not look like the gun that was used in the robbery.
Before defendant was arrested, Fresno Police Detective Ed Dingler prepared a photographic lineup with six photographs and with defendant’s picture in position No. 6 (lineup No. 1). The photograph of defendant was an earlier parole photograph; Dingler was not certain of the date of this photograph. After defendant was arrested, Dingler prepared another lineup of six photographs with defendant’s arrest photograph in position No. 3 (lineup No. 2). In the more recent photograph, defendant’s face looked more chiseled. The background of defendant’s picture in lineup No. 2 was different from the background of all the other photographs.
Dingler showed lineup No. 1 to Brewer on February 13, 2007, the day after she was robbed. She said that the person in the No. 5 position looked “close,” and the eyes of the person in photograph No. 6 looked close, but the face on No. 6 did not look tight enough. Brewer was shown photographs by another Fresno police officer, not Dingler. She did not identify anyone. After defendant was arrested, Brewer was shown lineup No. 2. She recognized defendant in position No. 3 of lineup No. 2 and was 100 percent certain it was a picture of the person who robbed her. Brewer identified defendant at trial as the person who robbed her at the Shell station on February 12, 2007.
Dingler showed lineup No. 1 to Surrel. She did not make an identification. When shown lineup No. 2, Surrel pointed to defendant’s picture and the picture of one other person as possibly the person responsible for the robbery at the Subway restaurant. During the trial, Surrel looked at defendant and said he could be the person who committed the robbery at the restaurant.
DelaGarza was shown lineup No. 2 by Dingler. She identified picture No. 3, defendant, as the person who robbed her at the Subway restaurant. She was very certain of her identification. Delargarza identified defendant during trial as the person who robbed her at the Subway restaurant on February 13, 2007.
Nagra was unable to identify anyone from lineup No. 1; she identified defendant from lineup No. 2. When shown the pellet gun found in defendant’s apartment, Nagra said she did not think the pellet gun was the gun used during the robbery at the liquor store.
Testimony regarding defendant’s tattoos and whether the witnesses saw the tattoos will be set forth in detail in part II of the discussion.
Defense
Louis Barba worked near Andre’s Liquor. He saw someone leave the store in an extreme rush and jump on a bike. Barba was taken to an in-field showup of defendant and said that defendant was not the person he saw leaving the store in an extreme rush.
Amanda Goodmon, the third employee in the Subway restaurant when the robbery occurred, said the robber looked right at her when he came in. She identified a photograph in lineup No. 2 as having eyes similar to the robber’s; the photograph was not of defendant. She told a defense investigator the man who robbed the store had a mustache. On cross-examination, she said she could not remember if the robber had facial hair.
Courtney Mendij was the woman who walked into the Shell station during the robbery on February 12, 2007. She testified that defendant is not the person who was robbing the clerk at the Shell station. The robber left the store with a man who was waiting outside and they went into a nearby house. The house was not the apartment where defendant was staying. On cross-examination, Mendij testified that she could have been using drugs at the time of the robbery and that she has a long history of drug abuse. In addition, she testified that the clerk in the store was a male.
Defense investigator Robert Rubio testified that DelaGarza said the robber was in his late 20’s. DelaGarza said she was shown two lineups and when shown lineup No. 2 she was stuck between No. 3 (defendant) and No. 6, but she chose No. 3. Goodmon told the investigator that the robber had a moustache and a beard. Goodmon also told him that she picked No. 2 from lineup No. 2 and that No. 3 (defendant) was definitely not the person who committed the robbery at the Subway restaurant.
Robert Shomer, an expert on identification procedures, testified that levels of accuracy for eyewitness identifications are not high. Stress makes the accuracy level worse. In addition, he testified that the failure to conduct an identification process properly can actually change what a person has in his or her mind. Shomer stated that facial recognition is highly unreliable. It was Shomer’s opinion that the police officer who conducts a lineup should not know who the suspect is because he unknowingly gives off clues as to who the suspect is through body language. In addition, Shomer said that people pay attention to the unusual in photographic lineups, and if one picture looks different it is more likely to be picked. It is also not fair to repeat a photograph in more than one lineup. This is so because that person will look more familiar in a second lineup if that same person was in the first lineup, and the memory is not based on the event but on the familiarity with the pictures. In instances where a weapon is used during a crime, the weapon becomes a visual magnet, causing less accurate identifications. Also, pretrial identification procedures will have an effect on in-court identifications because the person looks familiar from the identification procedures. Shomer testified that people get more committed to their identifications over time but not necessarily because they are right.
DISCUSSION
I. Photographic Lineups
Prior to trial, defendant made a motion to exclude the photographic identifications from trial and to further exclude any in-court identifications made by the witnesses. Defendant argued that the lineups were unduly suggestive because defendant was pictured in both lineup Nos. 1 and 2, and in lineup No. 2 the background color and shirt color in his picture were different from the remaining subjects. A lengthy hearing was held, and the trial court ruled that the photographic lineups were not tainted.
In all courtroom pretrial procedures where eyewitnesses testified, defendant was obscured from their view by a board to prevent any further possible taint to the identifications.
Testimony regarding the pretrial identification of defendant from photographic lineups was presented at trial, as well as in-court identifications by witnesses who had previously identified defendant in a photographic lineup.
On appeal, defendant claims the lineup procedure used in this case was unduly suggestive and the trial court erred when it refused to exclude the out-of-court identifications. In addition, he argues the in-court identifications were tainted by the impermissibly tainted lineups. The basis for his argument on appeal is the same as in the trial court: the lineups were unduly suggestive because defendant appeared in both lineups and in the second lineup his picture noticeably stood out from the others.
“Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable.” (People v. Yeoman (2003) 31 Cal.4th 93, 123.) “The question is not whether there were differences between the lineup participants, but ‘whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ [Citation.] We independently review ‘a trial court’s ruling that a pretrial identification procedure was not unduly suggestive.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 698-699.)
“In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.)
First, it has been repeatedly held that variations in photographic composition or processing such as discoloration, background color, image size, etc., do not normally suggest that picture should be selected, particularly when the witness is admonished to consider the persons depicted but not other things in the photograph. (People v. Carter (2005) 36 Cal.4th 1114, 1163; People v. Gonzalez (2006) 38 Cal.4th 932, 943.) Although the background color of defendant’s photograph in lineup No. 2 is different from the others, this is a trivial difference. In addition, while defendant is the only individual wearing a red shirt, he was not identified by any of the witnesses as wearing a red shirt at the time of the crime (except by the victim of the liquor store robbery, which ended in an acquittal), and the shirts of the subjects contained in lineup No. 2 were of various styles and patterns. Thus the background color and color of defendant’s shirt in lineup No. 2 was not unduly suggestive.
In People v. Yeoman, supra, 31 Cal.4th 93 a witness was shown two photographic lineups. The defendant’s picture appeared in each lineup, but the pictures were different. The defendant’s picture appeared in the same position in each lineup. The lineups were shown to the witness a month apart. The Supreme Court held that this was not unduly suggestive. The court noted, “[t]o use a suspect’s image in successive lineups might be suggestive if the same photograph were reused or if the lineups followed each other quickly enough for the witness to retain a distinct memory of the prior lineup.” (Id. at p. 124.) The court stated that no rule exists that prohibits an attempt to elicit a positive identification of a particular suspect from an eyewitness who does not identify the suspect from the first photograph. (Id. at p. 125.)
In People v. Ybarra (2008) 166 Cal.App.4th 1069, we rejected the argument that the photographic lineups were impermissibly suggestive. The victim there was shown a six-person photographic lineup at the hospital. The defendant’s photograph was in position No. 2. The victim pointed to defendant’s photograph and wrote “kinda” on a piece of paper. (Id. at pp. 1081-1082.) Two days later the detective showed the victim a “lineup different in two respects from the one before. First, Ybarra’s photograph, though in the same position as before, was newer than the one in the previous lineup. Second, the newer photograph [that was used showed] a Bulldogs gang tattoo on Ybarra’s forehead, so the detective obliterated with dark ink that portion of his head and the identical portions of the other five heads.” The victim pointed to Ybarra’s photograph again. (Id at p. 1082.)
We rejected the defendant’s argument that the photographic lineups were impermissibly suggestive. “Where photographs in a lineup are of males of the same ethnicity and [] ‘generally of the same age, complexion, and build, and generally resembling each other,’ and where the accused’s ‘photograph did not stand out, and the identification procedure was sufficiently neutral,’ the lineup is not impermissibly suggestive.” (People v. Ybarra, supra, 166 Cal.App.4th at p. 1082.)
We have inspected the two lineups. Each of the photographs contains an image of what appears to be a Hispanic male, and all of the individuals appear similar in age and physical characteristics. In both lineups the individuals closely resemble one another. As to defendant’s photographs, we agree with the trial court’s assessment that “close examination of both photographs of Defendant in each lineup makes it difficult to conclude that he is the one and the same individual in both photographic lineups. There are differences between Defendant as noted in the first group where he is more full faced and that of the second group where his face is more drawn and cheeks not as full.”
While the two lineups were shown to the witnesses close in time, the pictures of defendant were so different and the lineups themselves so neutral that our independent review persuades us that defendant has not made the requisite showing on appeal that the photographic lineups were impermissibly suggestive. Because defendant has not met his burden of establishing that the photographic identification procedure was unduly suggestive, we need not reach the question “‘whether the identification was nevertheless reliable under the totality of circumstances.’” (People v. Carter, supra, 36 Cal.4th at p. 1164.)
We note that although DelaGarza, Nagra, and Brewer each testified to seeing photographs one more time than Dingler claimed he showed them, there was no evidence to support a conclusion that the defendant’s photograph was in the additional lineup.
II. Viewing of Defendant’s Tattoos During Jury Deliberation
DelaGarza testified at trial that she did not see the tattoo above and behind the left eyebrow on defendant’s face. She thought the beanie or the hood defendant was wearing may have covered that tattoo. On cross-examination, DelaGarza was asked if she remembered telling the investigating officer that she saw tattoos on the neck or maybe his arm. She said she remembered the arm, but was not sure as far as neck tattoos. When asked about the arm tattoos, she said she did not remember anything about them, did not remember if it was on the right or left arm, and thought the tattoo was more on the forearm close to the wrist.
On redirect examination, DelaGarza did not clearly recall whether the person who came into the store had tattoos or not. She said she would have mentioned the presence of tattoos to the initial responding officer if she had seen them. She could not remember if she did or did not mention tattoos to the initial officer. On further cross-examination, she said if she had seen tattoos she would have mentioned that to the investigating officer.
The investigating officer who interviewed DelaGarza shortly after the robbery testified that DelaGarza did not say anything about tattoos. Surrel testified that she saw a tattoo on the neck area or side of the face of the robber. Brewer did not see any tattoos on defendant when he robbed her at the Shell station.
It was established at trial that defendant has tattoos below the tee-shirt line on his neck, a tattoo on his shoulders, and a tattoo over his eye. It was stipulated that the tattoo on defendant’s collarbone was not present at the time of his arrest, and that the tattoos farther out on his chest onto his shoulder were present at the time of his arrest.
When DelaGarza was interviewed by the defense investigator, she told him the robber had tattoos on his neck and maybe his arm. She could not remember whether he had tattoos on his face. Later in the proceedings defendant was asked to face the jury to show them his neck tattoo.
During jury deliberations on the afternoon of February 20, 2008, the jury sent out a note that read as follows: “We would like to know if we can view the tattoos on the Defendant’s wrists, forearms, neck and left eye. We would also like to view them from a closer vantage point.”
After consulting with counsel, the court determined that it would read back the stipulation about the tattoos and the testimony of Dingler regarding tattoos. In addition, the jury would be allowed to come closer to defendant to view the left side of his face in the same general position as the jury was allowed to view the tattoo at trial. The court decided it would not let the jury view the wrists or forearms and would not make further comment on that request.
As the jury passed by defendant, juror No. 16 asked the court about the answer to the jury’s question about the wrist tattoo. Juror No. 8 asked if defendant could pull up his sleeve so she could see the tattoo. After this the court stated, “with respect to other questions we’re going to have to leave it at this point.”
After discussing the above circumstance with counsel, the court then reinstructed the jury that it must decide what the facts are in this case using only the evidence that was presented in the courtroom. The jury returned to the jury room to deliberate.
Later that same afternoon, the jury sent out a note saying they would like to review the testimony of DelaGarza concerning tattoos on the wrists and forearms. In addition, they asked if they would be allowed to view defendant’s wrists and forearms if there is testimony from DelaGarza regarding tattoos on the wrists and forearms. The jury retired for the evening before the court ruled on these requests.
The next day (February 21, 2008), the parties stipulated that the reporter could read back to the jury the relevant testimony from DelaGarza regarding tattoos on defendant’s wrists and forearms.
The verdict forms illustrate that the jury had, on February 20, 2008, signed the guilty verdict form for the robbery of Brewer at the Shell station. Thus the jurors had completed that verdict before a determination was made whether they would be allowed to view defendant’s wrists and forearms.
An extensive discussion took place in chambers and then on the record on the question of whether the jury would be allowed to view tattoos on defendant’s wrists and forearms. At the outset of the on-the-record discussion, defense counsel stated his position to the court regarding the jury’s request to view defendant’s wrists and forearms.
“MR. FOSTER [defense counsel]: Recognizing that this is a difficult decision, I’m concerned about -- I’m concerned about the scope of any such viewing, how far up the forearm it gets to be and so forth. The jury has heard the evidence. And Mr. Frye [prosecutor] had the opportunity, if he chose to do that, to have Detective Dingler testify about tattoos that Mr. Uribe has on his forearms or what not. He chose not to elicit any of that testimony. And I think the jury should be simply instructed that they have the evidence and such a viewing is not permitted. Recognizing that the Court may choose to grant the jury’s request over my objection, Mr. Uribe is here at counsel table. He has his sleeves pulled up exposing the bottom half, I would say, of his forearms and his wrists. And I would have -- have to say if we’re going to anchor this request to the testimony of Mary DelaGarza, which was that she may have noted a tattoo on the wrist close -- or on the wrist or forearm close to the wrist, that the portion that Mr. Uribe has exposed at this time is sufficiently anchored to that testimony to satisfy the jury’s curiosity, and there should be no -- no order requiring any additional skin be uncovered.
“THE COURT: So you have no objection to the jury viewing what’s presently demonstrated to the jury?
“MR. FOSTER: No.
“THE COURT: And, Mr. Frye, the position of the People?”
The People argued that the entirety of the forearms should be shown to the jury. The People argued that the court should show the jury everything on the entire forearms or show the jury nothing at all. Defense counsel argued that any viewing should be tied to the testimony of DelaGarza and include only a limited portion of the forearms, stating once again that he did not like the idea of the viewing to begin with.
The court then discussed that a court has the discretion to reopen a case after deliberations have begun and that there are various factors to be considered in exercising that discretion. The court stated that it was attempting to exercise that discretion as best it could. The court thought perhaps the best approach would be to let the jury view what defendant had “agreed to.”
To this defense counsel replied, “[W]hy doesn’t the jury view the portions that we’re prepared to agree that they be allowed to view. And then have the court reporter go back and read back the relevant testimony.” Defense counsel questioned how far they were going to go outside the parameters of the testimony. The court replied that the viewing should be tied to something in the testimony. To this, defense counsel again argued, “The testimony was, there was a tattoo on the wrist or on the forearm just above the wrist, which is the portion that we’re prepared via stipulation to allow them to see. But if we’re getting beyond that, I think we’re getting outside of what --.”
The district attorney responded that it would be “disingenuous to show a portion that essentially excludes the portion where the tattoos are known to be. It suggests … there are no other tattoos.”
The court stated that it thought the initial viewing should be of part of the forearms and then it would be discussed if more of the forearms should be shown if the jury asks further questions.
The discussion concluded as follows:
“MR. FRYE [prosecutor]: Now, procedurally are we then reopening the case to
“THE COURT: No, I understand Counsel is stipulating that this can take place.
“MR. FRYE: Okay.
“THE COURT: So there’s no necessity to -- for the Court to make a finding. But I’ve cited authority that the Court could in exercise of its discretion do so.
“MR. FRYE: Okay.
“THE COURT: But in light of the stipulation, I think the record will speak for itself.”
Defendant contends the trial court erred when it reopened the case during the jury’s deliberations to allow the jury to view defendant’s wrists and forearms. Respondent contends that defendant forfeited this argument because he stipulated to the showing of the wrists and forearms.
“A defendant may forfeit an objection to the court’s response to a jury inquiry through counsel’s consent, or invitation or tacit approval of, that response. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [‘Inasmuch as defendant both suggested and consented to the responses given by the court, the claim of error has been waived.’]; People v. Hughes (2002) 27 Cal.4th 287, 402 [claim of error was ‘waived by defense counsel’s agreement with the trial court that informing the jury of the consequences of a deadlock would have been improper’]; People v. Bohana (2000) 84 Cal.App.4th 360, 373 [counsel invited and consented to failure to instruct on lesser offenses in response to jury inquiry]; People v. Thoi (1989) 213 Cal.App.3d 689, 698 [error invited or waived, where counsel ‘actively and vigorously lobbied against further instruction’]; People v. Kageler (1973) 32 Cal.App.3d 738, 746 [where clarification would have adversely affected defense, failure to object had possible tactical motive and could be viewed as ‘tacit approval’].) But this rule obviously cannot apply unless it appears that counsel was aware of the court’s response at or before the time it was effected. ‘Tacit approval’ of the court’s response, or lack of response, may be found … where the court makes clear its intended response and defense counsel, with ample opportunity to object, fails to do so. (See People v. Boyette (2002) 29 Cal.4th 381, 430.) At its furthest reach the rule has been held to justify a forfeiture where defense counsel sat mute while the court provided a response later challenged on appeal. (People v. Roldan (2005) 35 Cal.4th 646, 729.)” (People v. Ross (2007) 155 Cal.App.4th 1033, 1048.)
We agree with respondent. Although defense counsel initially objected, as the discussions progressed defendant acquiesced in the showing of the forearms and wrists and at one point said he agreed via stipulation to the viewing. We are particularly persuaded by defendant’s failure to respond when the court stated the showing was going to be made by stipulation and that the court was not going to exercise its discretion in this regard. At this point, if defense counsel disagreed that the viewing was not to occur solely by stipulation, he should have made his position known and forced the court to exercise its discretion and make a ruling. Having failed to do so, there is no ruling on the record where the court exercises its discretion and thus no ruling for this court to review. This is precisely the reason why objections are required. “As a general rule a party objecting to evidence must make a timely and specific objection in the trial court. [Citations.] This gives both parties the opportunity to address the admissibility of the evidence so the trial court can make an informed ruling, and creates a record for appellate review. [Citation.]” (People v. Davis (2008) 168 Cal.App.4th 617, 627.) Defendant failed to preserve the issue for appeal.
In addition to defendant’s not making an objection to the jury’s viewing of his wrists and forearms, the record was not adequately preserved on the question of whether defendant did or did not have tattoos on the forearms and wrists. Although it appears from the arguments made that defendant had no tattoos on the lower part of his forearms but had tattoos further up on his forearms, this was never set forth on the record in certain terms. We are left to speculate regarding where there are and are not tattoos on the forearms. Thus, the record is incomplete for review on this point.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J., HILL, J.