P. v Valentin
Filed 11/19/13 P. v Valentin CA2/2
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
>
THE PEOPLE, Plaintiff and Respondent, v. JEREMY VALENTIN, Defendant and Appellant. | B244615 (Los Angeles County Super. Ct. No. NA091099) |
APPEAL from
a judgment of the Superior Court
of
County. Charles D.
Sheldon, Judge. Affirmed.
California
Appellate Project, Jonathan B. Steiner and Ann Krausz, 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, Scott A. Taryle and Timothy M.
Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Jeremy Valentin appeals from the judgment in
which a jury convicted him of one count of second
degree robbery in violation of Penal Code section 211,
a felony. The jury also found true the
allegation that appellant personally used a firearm in violation of section
12022.53, subdivision (b). In a
bifurcated trial, the trial court found true that appellant had served four
prior prison terms pursuant to section 667.5, subdivision (b). The trial court sentenced appellant to a
prison term of 13 years, consisting of the midterm of three years on the
robbery count plus 10 years on the firearm enhancement. The trial court struck the prior prison
terms.
Appellant
contends that the trial court abused its discretion by precluding him from
presenting expert testimony on eyewitness
identification. We affirm.
FACTS
Prosecution Case
On December 26, 2011 around 7:30
p.m., Sergio Caraveo (Caraveo), the victim, was running in his
neighborhood in San Pedro. Before stopping
to drink from a water fountain at the intersection of South Crescent Avenue and
West 21st Street, he saw
appellant and another man sitting on the front porch of a house on South
Crescent Avenue. When he finished drinking,
Caraveo started stretching. Appellant
grabbed Caraveo’s shoulder and told him he had a gun. Appellant held a gun to the right side of
Caraveo’s head and ordered him to empty his pockets. Appellant then turned Caraveo around, so that
they were facing each other about one foot apart. A streetlight was on, and Caraveo could see
appellant’s face and that appellant had acne scars. Appellant was wearing blue jeans, a black
jacket and a red hat.
Caraveo responded that he did not
have anything in his pockets because he
had been running. Appellant said, “I don’t give a fuck where you
just came from.†Caraveo emptied his
pockets and gave appellant his iPod, which was Caraveo’s Christmas present from
the prior day. Appellant took the iPod
and returned to the house where Caraveo had seen him on the porch. The man who had been with appellant on the
porch acted as a lookout.
Caraveo went home, then drove back to South
Crescent Avenue with his older brother and his cousin so that he could get the correct
address of the house for the police. When he saw appellant and the other man on the
porch, Caraveo said to his brother, “that was them.†While Caraveo waited for the police to
arrive, appellant left the house on South Crescent Avenue and went through an
alley. The other man also left the
house.
Appellant was arrested on January 4, 2012, at the house on South
Crescent Avenue while police were investigating a different incident. Without hesitation, Caraveo identified
appellant in a six-pack photographic lineup on January 11, 2012.
Defense Case
Appellant testified that on December 26, 2011, he was staying at
the South Crescent Avenue house, which his friend Kim Larsen (Larsen) was
renting. Between 6:00 and 7:00 p.m.,
appellant was in the house having sex with a woman named “Bonnie.†When appellant started to leave the house sometime
after 7:00 p.m., he walked past
Daniel Balderrama (Balderrama) and a man he did not know, who were sitting on
the front porch of the house. A car
pulled up, and two people started shouting about how their brother had just
been robbed and that they wanted to fight somebody to retrieve what was
stolen. Balderrama and the other man ran
inside the house. Appellant’s ride
showed up and he left to go to dinner.
He eventually met Larsen at a nearby bar, and returned home around 2:00 a.m.
Appellant was wearing plaid shorts and a white T-shirt the day of the
robbery.
Larsen saw Balderrama run into her
home carrying an iPod. Balderrama was
wearing a t-shirt, pants and a red hat with the letter “B†on it.
During cross-examination, the
defense investigator conceded that Caraveo had identified appellant as the
robber, and that Caraveo stated that Balderrama was not the robber when shown a
picture of Balderrama.
Appellant contends that the trial court abused its
discretion by precluding him from presenting expert testimony on eyewitness
identification, given that his defense was mistaken identity.
The Trial Court Did
Not Abuse its Discretion in Precluding Expert Eyewitness Identification Evidence
A. Procedural History
Prior to
trial, appellant moved for the appointment of Dr. Robert W. Shomer, an
eyewitness identification expert. The
trial court granted the motion.
Appellant then moved for additional funds to compensate Dr. Shomer for
his expected testimony, and the trial court granted the motion. The prosecution then filed a motion to exclude
Dr. Shomer’s testimony on the grounds that it would be irrelevant and
prejudicial. The trial court granted the
motion, stating: “[J]urors are smart,
[a] very high percentage of them are smart. [¶] I have
had 1,200 trials. I know that from
personal experience in talking to them after the trial as well as during the
voir dire. . . . [¶] At the end of the case when all the evidence is
in, [the defense] can argue things that have to do with whether the ID is any good.
[¶]
And so you are covered in that respect . . . .â€
B. Applicable Law
“When an
eyewitness identification of the defendant is a key element of the prosecution’s
case but is not substantially corroborated by evidence giving it independent
reliability, and the defendant offers qualified expert testimony on specific
psychological factors shown by the record that could have affected the accuracy
of the identification but are not likely to be fully known to or understood by
the jury, it will ordinarily be error to exclude that testimony.†(People
v. McDonald (1984) 37 Cal.3d 351, 377 (McDonald),
overruled on another ground in People v.
Mendoza (2000) 23 Cal.4th 896.) Our Supreme
Court later stated, “McDonald does
not apply when an eyewitness identification is ‘substantially corroborated by
evidence giving it independent reliability.’â€
(People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 290–291.) The
intend to open the flood gates to expert testimony on psychological factors
affecting eyewitness testimony, and expected that “such evidence will not often
be needed.†(McDonald, supra, at p. 377.) The decision to admit or exclude eyewitness
expert testimony is a matter within the trial court’s discretion and is
reviewed for an abuse of discretion. (
C. Analysis
The trial
court did not abuse its discretion in precluding the expert evidence on
eyewitness identification for three reasons.
First, contrary to appellant’s
position, the victim Caraveo’s eyewitness identification of appellant was
corroborated by other evidence. Under
exclude expert testimony on the matter.
(McDonald, supra, 37 Cal.3d at
p. 377.) Caraveo’s brother
testified that when he and Caraveo returned to the South Crescent Avenue house,
Caraveo immediately identified appellant. Appellant was later arrested at the house,
indicating that he indeed lived there. Though Larsen implicated Balderrama, she testified
that she saw an iPod, confirming that Caraveo’s device was stolen. Also, when shown a photograph of Balderrama,
who the defense claimed could be liable for the robbery, Caraveo did not identify
him as the robber, and instead maintained that appellant was the individual who
stole his iPod at gunpoint.
Second, Caraveo’s eyewitness
identification of appellant was far more reliable than that in
that the trial court had improperly excluded Dr. Shomer’s testimony. In McDonald,
where the victim was shot in a busy intersection at rush hour, only four of the
prosecution’s seven eyewitnesses identified the defendant in the courtroom, and
their testimony revealed that they were not confident about their
identifications. (McDonald, supra, 37 Cal.3d at pp. 356–358.) One eyewitness even unequivocally testified
that the defendant was not the shooter.
(Id. at p. 358.) None of the witnesses made a positive unequivocal
identification during the pretrial photographic lineup. In addition, parked cars in front of the
altercation and cars driving past the intersection created a limited and
blocked view of the murder. (
the crime. (Id. at p. 360.) The
defense presented six witnesses who testified that at the time of the shooting the
defendant was in another state visiting a relative, and this alibi was
corroborated by mail and telephone records.
(Ibid.)
Here, Caraveo identified appellant immediately
after the robbery when he went back to South Crescent Avenue with his
brother. He also identified appellant in
a six-pack photographic lineup two weeks later, and his identification was
unequivocal and made without hesitation. When shown a photograph of Balderrama, Caraveo
stated that Balderrama was not the man who robbed him. Caraveo also identified appellant in court. Additionally, Caraveo’s view of appellant during
the robbery was not obstructed. Caraveo
was standing face-to-face with appellant about one foot apart. The overhead street light was on, allowing
Caraveo to see appellant’s distinguishing facial features, such as acne scars. The California Supreme Court cited these same
reasons—close proximity, lightened area, and positive identifications—in
finding eyewitness identification evidence to be stronger than that in
v. Sanders (1995) 11 Cal.4th 475, 509 [affirming exclusion of an eyewitness
identification expert in a case in which a defendant killed four people while
robbing a restaurant].)
Finally, expert eyewitness identification
testimony was not necessary in this case to explain the psychological factors
that could have affected the reliability of Caraveo’s identification. Appellant cites such factors as fear, fatigue,
stress, poor lighting, memory decay and age difference as factors necessitating
expert testimony.
title="">[2]
We agree with the People that these
psychological factors are issues ordinary jurors can decipher and understand
without the aid of an expert. Ordinary people
understand that being robbed at gunpoint is a stressful and scary event; poor
lighting can reduce the ability to see; fatigue can weaken one’s ability to think
clearly; memory fades over time; and younger people tend to make less reliable
identifications. Testimony from an
expert would not have added anything to such common knowledge. (See People
v. Plasencia (1985) 168 Cal.App.3d 546, 555, where this division previously
held that Dr. Shomer’s testimony was not relevant, stating “The jury did not
need edification on the obvious fact that an unprovoked gang attack is a
stressful event or that the passage of time frequently [affects] one’s memory.â€)
Further, a “particularly importantâ€
reason expert testimony was required in McDonald
was that the identifications were cross-racial.
(McDonald, supra, 37 Cal.3d at
p. 376.) That was not an issue
here.
Additionally, the jury was
instructed with CALJIC No. 2.92, which identifies various factors that could
affect the accuracy of a witness’s identification of the perpetrator, including
the stress the witness was under at the time of observation, the witness’s
capacity to make an identification, whether the witness identified the perpetrator
in a photographic lineup, the passage of time, whether the witness was certain
about the identification, and “[a]ny other evidence relating to the witness’[s]
ability to make an identification.†Testimony
from an expert would not have added to these factors. (See People
v. Goodwillie (2007) 147 Cal.App.4th 695, 725 [finding no error in
exclusion of expert evidence where CALJIC No. 2.92 was given].) Even the McDonald
court recognized that such jury instructions would focus the jury’s attention
toward any reliability issues regarding eyewitness identification. (McDonald,
supra, 37 Cal.3d at p. 377, fn. 24.)
We conclude that the trial court did
not abuse its discretion in precluding appellant from presenting expert eyewitness
identification evidence.
name="_ftnref3" title="">[3]
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________, J.
FERNS
name="_ftn1" title="">
references are to the Penal Code unless otherwise indicated.
years old and appellant was 32 years old.
