P. v. Mendez
Filed 11/7/13 P. v. Mendez CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMUNDO MENDEZ,
Defendant and Appellant.
B245874
(Los Angeles
County
Super. Ct.
No. BA390747)
APPEAL from a judgment of the Superior
Court of
County, Gail Ruderman Feuer, Judge. Affirmed.
Helen Simkins Irza, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys
General, for Plaintiff and Respondent.
* * * * * * * * * *
Defendant Raymundo Mendez was
convicted of assault with personal use of
a firearm. The chief defense was
mistaken identity. Three eyewitnesses
identified defendant as the assailant.
One eyewitness said defendant was wearing a blue shirt with no vest or
jacket at the time of the assault. When
defendant was stopped by police a few minutes later, he was wearing a
jacket. Another eyewitness said defendant
was wearing a blue shirt and a vest, and an investigating officer noted in her
report defendant was wearing a vest. The
only claimed error on appeal is the court erred in allowing the arresting
officer, who was called as a defense witness, to testify on cross-examination
that it is common for people who commit gun crimes to change clothes after the
crime and discard the gun. Defendant
argues this evidence was irrelevant and inherently prejudicial “profileâ€
evidence.
Defendant
waived this claim by failing to object at trial on the ground the evidence was
irrelevant or prejudicial. In any event,
we find no merit to the claimed error.
Courts have condemned the prosecution’s use of expert testimony to
describe the method and means of a particular type of criminal to commit a
particular type of crime as evidence that, since the charged crime shares the
same or similar characteristics, the defendant must also be guilty of
committing the same crime. The brief
cross-examination of the arresting officer in this case does not come close to
falling within this prohibited category of profile evidence.
BACKGROUND
The three
eyewitnesses were Jose Sanchez, Jessica Mendoza and Christian Maldonado. Sanchez drove Mendoza and Maldonado into the
parking area of the Oasis Hotel after an evening at a local club. Maldonado got out and approached the
reception office to inquire about getting a room while Sanchez and Mendoza
waited in the car. The parking lot was
well lit.
Three men
in the parking lot followed Maldonado as he approached the office and knocked
on the door. There was no response, and
Sanchez called to Maldonado to get back in the car. The men followed Maldonado back to the
car. After Maldonado got into the front
passenger seat, one of the men standing near the passenger side door indicated
to Maldonado to roll down his window, which Sanchez did slightly, and the man
said something. Defendant walked around
to the driver’s side, pulled out a handgun, racked it, pointed it at Sanchez,
and told him to get out of the car.
Instead, Sanchez drove off and called 911. Sanchez, Maldonado, and Mendoza each got a
good look at defendant’s face. Sanchez
saw defendant’s face for about four minutes.
Three to five minutes after driving
away, Sanchez swung around and returned to the Oasis Hotel, where there were
already five or six police cars. The
three got out of the car and spotted defendant with his companions. Sanchez and Maldonado pointed them out to the
police and the three started to hurry off, but the helicopter shined its light
on them, and the police stopped and handcuffed the men. Sanchez, Mendoza and Maldonado all identified
defendant as the man with the gun.
Police arrested him, detained the others and later released them. Police searched for the gun but none was
found.
The defense
at trial was mistaken identity.
Defendant offered the alibi testimony of his friend Edgar Puac and
Edgar’s brother, Pasqual Puac. Edgar
testified he and defendant had been drinking beer together and had gone to get
more beer when they were assaulted by gangsters who beat up defendant and left
him bleeding on the ground of the parking lot at the Oasis Hotel. Edgar called Pasqual for help, and Pasqual
arrived 10 to 15 minutes later to pick them up.
The police arrived just as Pasqual and Edgar were about to help
defendant into the car. Defendant
testified in his own defense to a similar version of events.
The police officer at the scene,
and the officer who transported defendant to the station, testified they did
not see any blood on defendant or on his clothing and he did not tell them he
had been assaulted or that he was in pain or needed a doctor.
When
Sanchez had called 911, he said defendant was wearing blue pants and a blue
shirt, but did not mention a vest or jacket.
When the three eyewitnesses gave statements to the police at the scene a
few minutes later, Maldonado said defendant was wearing a blue shirt with a black
vest over it when he pointed a gun at Sanchez, but was wearing a jacket when he
was arrested by police. According to
Sanchez, defendant put on a black jacket before the police arrived at the Oasis
Hotel; he was not wearing a jacket or vest when he pulled a gun on
Sanchez. Defendant called Officer Zadi
Borquez as a defense witness. Officer
Borquez and his partner were the first to arrive on the scene. According to Officer Borquez, his police
report noted that defendant was wearing a black vest at the time of his
arrest. Respondent suggests the
witnesses were referring to the same garment variously as a vest or a jacket,
but we are in no position to draw that inference because the record does not
support it.
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or not defendant was wearing a vest at the time of the assault and whether or
not he was wearing a vest or a jacket at the time of the arrest.
On direct
examination by the defense, Officer Borquez testified the gun was never found. During the prosecution’s cross-examination,
Officer Borquez was asked whether it is “typical in [his] experience as a
police officer that there are . . . many times calls or incidents where a
suspect was armed?†The prosecutor asked
whether there are times when “you don’t find a weapon?†Defense counsel objected on the basis of
foundation, and the objection was sustained.
Accordingly, the prosecutor asked how long Officer Borquez had been a
peace officer, whether he had “responded to calls as a peace officer where
people have used weapons,†and whether he had responded to calls where the
weapon was not located. Officer Borquez
answered, “Yes.†The prosecutor then
asked if it was “pretty common for you to have calls where a perpetrator uses a
weapon and one is never recovered.â€
Officer Borquez again answered affirmatively. Defense counsel lodged a general objection,
which was overruled. The prosecutor then
asked whether defendant was wearing a black jacket at the time of his arrest,
and whether it was “common . . . to have suspects that quickly change their
description†by taking off an article of clothing. Defense counsel did not object, and Officer
Borquez answered, “Yes.†It is the
admission of this testimony which defendant claims as reversible error.
Defendant
claims the admission of this brief testimony of Officer Borquez on cross-examination
by the prosecutor was “profile†evidence of little or no probative value but
great prejudicial effect. He contends
this issue was not waived by trial counsel’s failure to object on this basis, or,
alternatively, that he received ineffective assistance of counsel. We are not persuaded. The evidence was not profile evidence. Rather, the evidence was intended to rebut
defendant’s mistaken identity defense. Also,
the alleged error was waived. Defendant did
not object on the ground asserted on appeal, and because the challenged evidence was
admissible, any objection would have been meritless, and counsel’s failure to
object does not constitute ineffective assistance. (People v. Williams (1997) 16 Cal.4th 635, 661;
Cal.App.4th 442, 466-467;
772, 778.)
“A profile
is a collection of conduct and characteristics commonly displayed by those who
commit a certain crime.†(
1075, 1084.) “In profile testimony, the
expert compares the behavior of the defendant to the pattern or profile and
concludes the defendant fits the profile.â€
(People v. Prince (2007) 40
Cal.4th 1179, 1226.) Various courts have
rejected the use of profile evidence as substantive proof of guilt. The federal courts rejected the use of drug
courier profile evidence to prove guilt, that is, expert testimony describing the
characteristics often displayed by those trafficking in drugs which is similar
to the behavior of the defendant on trial.
(See, e.g., United States v.
Quigley (8th Cir. 1989) 890 F.2d 1019, 1021.) California
Courts of Appeal have also found it an abuse of discretion to admit profile testimony. (See, e.g., People v. Robbie, supra,
at p. 1084; People v. Castaneda (1997)
55 Cal.App.4th 1067, 1071-1072; People v.
Martinez (1992) 10 Cal.App.4th 1001, 1006-1008.)
For example, it was an abuse of
discretion to admit an expert’s testimony describing in detail how auto theft
rings operate, such as the type of cars that are stolen, the routes selected to
transport them and the false documentation typically encountered, to prove the
defendant’s guilt because he was driving a similar vehicle on a similar route
and shared other characteristics typical of auto thieves. (People
v. Martinez, supra, 10
Cal.App.4th at pp. 1006-1008.)
Similarly, it was an abuse of discretion to admit expert testimony that
most heroin dealers in Northern San
Diego County are
Hispanic male adults, to prove the Hispanic male adult on trial was guilty of
heroin possession. (People v. Castaneda, supra,
55 Cal.App.4th at pp. 1071-1072.) While
finding the admission of profile evidence is not reversible per se, another
court found it was an abuse of discretion to admit expert testimony describing
an archetypal “friendly†rapist who uses minimal force, drives the victim back
home to her neighborhood after the assault and asks questions about her life,
to prove the similar behavior of the defendant on trial proved his guilt of
rape because he matched the profile of the friendly rapist. (People
v. Robbie, supra,
Our Supreme Court has held profile
evidence is inadmissible “only if it is either irrelevant, lacks a foundation,
or is more prejudicial than probative.â€
(People v. Smith (2005) 35
Cal.4th 334, 357.) The court explained
the proper analysis to determine the admissibility of profile evidence is by weighing
the Evidence Code section 352 factors, and that “prejudice†in section 352
“does not refer simply to evidence that is damaging to the defendant. Instead, “ ‘ “[t]he ‘prejudice’ referred to
in section 352 applies to evidence which uniquely tends to evoke an emotional
bias against the defendant as an individual and which
has very little effect on the issues.â€
’ †(Smith, supra, at p. 357, citation
omitted.) Accordingly, “[p]rofile
evidence is objectionable when it is insufficiently probative because the
conduct or matter that fits the profile is as consistent with innocence as
guilt.†(Id. at p. 358.)
These
authorities demonstrate the brief testimony of Officer Borquez was not inadmissible
profile evidence. It was relevant to
rebut the inference that defendant was misidentified because he wore different
clothes and had no gun, and it was not likely to incite the jury’s bias or
passion against defendant. In the cases defendant
has cited finding reversible error in the admission of profile testimony, the
prosecution called an expert to describe at some length the stereotypical
behavior of certain types of criminals to show the behavior of the defendant on
trial matched the stereotype and therefore the defendant was guilty. (See People
v. Robbie, supra, 92 Cal.App.4th
at p. 1084; People v. Martinez,
In contrast, here, the prosecution did
not offer the testimony of Officer Borquez as part of its case-in-chief to
prove that defendant fit the profile of a criminal by changing his clothes and
discarding the gun. Rather, Officer
Borquez was a defense witness, and
the brief testimony challenged here was on the prosecutor’s cross-examination.
Defendant had elicited testimony
from Officer Borquez and other witnesses to underscore the differences in
testimony as to whether or not defendant was wearing a vest or a jacket, and to
highlight the evidence that defendant was not found in possession of a gun. In opening statement, defendant asserted the
mistaken identity defense and developed that theme throughout trial. The prosecution’s cross-examination of
Officer Borquez was in fair rebuttal of the defense theme that the police
arrested the wrong man, by offering circumstantial evidence to suggest
defendant may have disposed of the gun and changed clothes to avoid being
identified as the assailant.
No case finding evidence had been
improperly admitted as prejudicial profile evidence is similar to this case,
where a defense witness answered a few questions on cross-examination that
elicited testimony to rebut a defense, as opposed to evidence offered by the
prosecution to prove guilt by comparing defendant with the profile of a
criminal. We doubt any jury would be
inclined to find defendant guilty based on evidence that he was
eyewitnesses described the assailant had been wearing a few minutes earlier,
and evidence that no gun was found on
or near him. We do not find the record
here demonstrates the prosecution attempted to improperly establish defendant’s
guilt based on the evidence that he wore different clothes than the assailant
and bore no gun or other weapon. Since
we find no abuse of discretion in the admission of Officer Borquez’s testimony,
the only issue raised on appeal, we affirm the judgment.
The judgment is affirmed.
GRIMES, J.
We concur:
BIGELOW,
P. J.
FLIER, J.
wearing a black jacket, and not a vest, at the time of his arrest.
