P. v. Wills

Filed 3/20/07 P. v. Wills CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant and appellant Beasley Wills appeals the judgment of conviction imposed following a jury trial. The jury convicted appellant on two counts of robbery and one count of possession of a firearm by a felon. Appellant contends the trial court abused its discretion by excluding expert testimony on the reliability of the Peoples eyewitnesses. Appellant also contends the trial court erred by admitting lay opinion testimony regarding a correlation between drug use and robbery. We affirm.

Facts

At around 7:50 p.m. on February 3, 2005, an armed robber entered the Beacon gas station at Foothill and Havenscourt Boulevards in East Oakland. Two employees of the gas station, Vijay Behl and Lucio Garcia, were on duty at the time. Garcia was behind the cash register, Behl was standing on the customer side of the counter speaking on his cell phone. No other customers or employees were present.

The robber approached the counter and drew a large revolver from his waistband. He aimed the revolver at Behls chest, threatened to kill him, and demanded money. Garcia produced some money from the cash register and placed it on the counter. The robber repeated his demand for money and continued throughout to threaten Behl. Garcia removed the cash tray from the register and placed it on the counter. The robber filled his pockets with all the cash from the tray, backed out of the gas station and fled. The gas station lost $400-$500 in the robbery.

After the robber left, Garcia and Behl summoned Oakland Police by activating the gas stations security alarm. Behl also described the robbery and the suspect to a 911 operator. Four security cameras recorded the crime but the poor quality of the tape precluded any meaningful depiction of the perpetrator. The robber also concealed himself from the cameras by his clothing and by walking backwards out of the gas station.

On March 3, 2005, appellants step-brother, Eric Delk, told police appellant robbed the Beacon gas station on February 3. Delk was in custody on vehicle theft charges at the time, and appellant was also in custody on an unrelated charge. The investigating officers arranged an identification lineup to corroborate Delks information with the two eyewitnesses.

Behl and Garcia attended a lineup on March 9, at the Oakland police station. The lineup included appellant and five fillers chosen by appellant from fellow inmates in accordance with standard lineup procedures. At the lineup appellant and the fillers each donned a black knit beanie, stepped forward and said:  Give me the money.  After the lineup, Behl unequivocally identified appellant as the robber. Garcia tentatively identified appellant, but indicated his uncertainty by marking his lineup card with a question mark. On March 25, 2005, police formally charged appellant with robbing the Beacon gas station.

Procedural Background

An information filed on April 28, 2005, charged appellant as follows: count onesecond degree robbery of Vijay Behl on or about February 3, 2005 (Pen. Code,[1]  211); count twosecond degree robbery of Lucio Garcia on or about February 3, 2005 ( 211); count threepossession of firearm by a felon on or about February 3, 2005 ( 12021, subdivision (a)(1)). Counts one and two included enhancements for personal use of a firearm ( 12022.5, subdivision (a) & 12022.53, subdivision (b)).

Before the trial the People moved to exclude the testimony of defense witness Dr. Robert Shomer under Evidence Code section 352. Dr. Shomer is an expert in eyewitness identification. In their offer of proof, the defense stated Dr. Shomer would testify to the potential unreliability of eyewitness identifications. Specifically, he would address the impact of emotional stress on eyewitness perception and recollection, as well as problems with interracial identifications.

The court granted the Peoples motion to exclude Dr. Shomers testimony. The court ruled as follows: Well, I have reviewed People versus McDonald, which is the Seminole [sic] case, and I do find that there is much more evidence bearing on the identification in this case than was true in McDonald . . . . [] In this case, there is both the factors of the positive identification at least by one individual, and there is corroborating evidence of whatever weight from both Mr. Delk and the other individual, [appellants girlfriend, Sherrill Charles] . . . describing a firearm. Therefore, it is my ruling that giving effect to the provisions of Evidence Code [section] 352, that there is no need for expert testimony in this particular case. Given that, the jury can be adequately instructed about it, and it will be their ultimate decision and effective argument can be made to the weight of the corroborating evidence.

Trial began on August 8, 2005. After Behl and Garcia testified, defense counsel moved for reconsideration of the courts earlier ruling excluding Dr. Shomers testimony. Counsel emphasized appellants alibi defense, as well as possible deficiencies in the corroboration testimony of Delk and Charles. The trial court again concluded expert testimony was not required because there is . . . substantial corroboration of the [eyewitness] evidence giving it independent reliability.

The parties stipulated to appellants prior felony conviction pertaining to count three of the information. On August 15, 2005, after 45 minutes of deliberation, the jury returned guilty verdicts on each count of the information. The jury also found the two enhancements true.

On October 13, 2005, the court sentenced appellant on each count of robbery to the mid-term of three years, plus 10 years for the firearm enhancement, for a total of 13 years. The court ordered the two 13-year sentences be concurrent, and also added a concurrent two year term for count three.

Discussion

I

Appellant contends the trial court erred by excluding Dr. Shomers testimony on the limits of eyewitness reliability. Without Dr. Shomers testimony, appellant argues, he could not present an effective mistaken identity defense and the jury could not properly weigh the reliability of the eyewitness testimony. Appellant asserts he was thereby deprived of his Sixth Amendment rights to confrontation and compulsory process, as well as his Fourteenth Amendment right to due process. On that basis, appellant asserts this court must reverse unless respondent can demonstrate the error was harmless beyond a reasonable doubt.

A.    Eyewitness and Trial Testimony

Behl told the 911 operator the robber had a dark complexion, a mustache and beard, was aged between 40 and 45, and wore jeans, a blue jacket with a hood and a black beanie hat. Behl also told the 911 operator he recognized the robber as a regular customer. Behl later gave the same description to police at the scene of the robbery. He went on to positively identify appellant as the robber at the police lineup; the preliminary hearing; and at trial; adding that appellant had bought beer at the gas station on the very afternoon of the robbery. In each case, Behls identification was unhesitant and unequivocal. On cross-examination, however, Behl stated he had not mentioned either appellants facial scar or missing bottom teeth in his prior statements.

In his statement to police, Garcia described the robber as an African-American male, aged 40 to 45 years old, who was unshaven, had a dark complexion, stood between six feet and six feet two and weighed approximately 200 pounds. Garcia stated the robber wore blue jeans, a dark jacket and dark beanie. Garcia positively identified appellant as the robber at the preliminary hearing and trial. He testified he had indeed recognized appellant as the robber at the lineup, but hesitated to identify him out of fear of retribution and of having to testify. Garcia also testified that, upon reflection, he too remembered appellant as a regular customer of the gas station. Like Behl, Garcia mentioned neither a facial scar nor missing teeth in any of his descriptions of appellant.

The prosecution called Eric Delk as its first corroboration witness. Delk, however, recanted his earlier statements to police and prosecutors about appellant being the robber. Delk testified he lied to police about appellants involvement in the robbery. He said he lied in order to get out of jail and because he was angry at appellant for sleeping with his (Delks) girlfriend.

The prosecution impeached Delk with his prior inconsistent statements. The People also called John Paul Williams, a police officer with the district attorneys office, and Allen Boyd, a security deputy at the Wiley Manuel Courthouse in Oakland. Williams testified to the statement he took from Delk, incriminating appellant. Boyd testified he overheard Delks statement to Williams from his post outside the interview room. Both witnesses related essentially the same statement from Delk. Both witnesses also affirmed neither the district attorney nor Williams made Delk an offer of leniency or any other incentive in exchange for his statement.

The People also listed Sherrill Charles as a corroboration witness. Charles and appellant had a romantic relationship and lived together. The prosecution expected Charles to testify as follows: she had seen appellant with a handgun similar to the one used in the gas station robbery, he lived within walking distance of the gas station, he smoked crack cocaine, and he had money for household expenses despite his unemployment. The district attorney subpoenaed Charles, but she failed to appear at trial. The court subsequently issued a bench warrant for her.

Appellant asserted an alibi defense. Appellants longtime friend, Manfred Dion Jones, testified he and appellant purchased a car together on February 3, 2005the night of the robbery. No paperwork accompanied the sale of the car. On cross-examination Jones admitted he was uncertain about the exact date of the transaction. Appellant also testified he and Jones met with appellants nephew to purchase a car on February 3.

CALJIC No. 2.92 was included in the jury instructions at the request of both parties. The court thereby instructed jurors to consider eyewitness testimony in light of a number of factors bearing on its accuracy, including opportunity to observe; the effects of stress; ability to describe; the cross-racial nature of identification; capacity to identify; whether identification was made in a photo or physical lineup; and any prior contacts with the alleged perpetrator. Both the prosecution and defense addressed the factors of CALJIC No. 2.92 in detail during closing arguments.

B.   Discussion

People v. McDonald (1984) 37 Cal.3d 351[2] (McDonald) is the seminal case on the admission of expert testimony on eyewitness identification. There, the jury found Eddie McDonald guilty of murder with special circumstances (robbery) and sentenced him to death. (Id. at p. 355.) The prosecution case against McDonald consisted solely of eyewitness testimony. Eight eyewitnesses testified about the shooting in the street near a busy intersection in Long Beach in August 1979. (Id. at pp. 355-359.) The witnesses differed widely in their descriptions of the perpetrator. Moreover, various factors made the eyewitness identification of the killer unreliable: four of the witnesses had their views obscured by rush hour traffic; one averted her gaze out of fear; one saw only the aftermath of the shooting, from across the street and focused mostly on the weapon; and another was not only colorblind but wearing sunglasses as the shooter sprinted past. (Ibid.) Additionally, none of the eyewitnesses positively identified the defendant in a police photo lineup. While four of the eyewitnesses positively identified the defendant at trial, three did so only tentatively. One positively asserted the defendant was not the killer. (Id. at pp. 358-359.) The prosecution presented no physical evidence or any other testimony connecting the defendant to the crime. (Id. at p. 360.) Furthermore, McDonald presented a strong alibi defense in which six witnesses testified he was in Alabama when the murder occurred. Postmarked mail and telephone bills also placed him in Alabama at the time of the murder and supported the testimony of the alibi witnesses. (Ibid.)

Despite all this, the trial court excluded testimony from the defendants expert on factors affecting the reliability of eyewitness testimony. (McDonald, supra, 37 Cal.3d at p. 360.) The defense offered this expert testimony to educate the jury about research which undermined common beliefs about eyewitness reliability. (Id. at pp. 361-362.) The expert testimony would have addressed the impact of emotional stress on perception and recollection; and the effect of the  cross-racial factor  in accurate identification. (Id. at p. 362)

On automatic appeal, the Supreme Court reversed the trial courts decision to exclude expert testimony. The Court reiterate[d] that the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial courts discretion . . . . (McDonald, supra, 37 Cal.3d at p. 377.) The Court stated it did  not intend to open the gates to a flood of expert evidence on the subject.  (Ibid.) Rather, the Court expect[ed] that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial courts discretion in this matter. (Ibid.) Nevertheless, and noting deference is not abdication[,] the Court held: When an eyewitness identification of the defendant is a key element of the prosecutions 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. (Ibid.)

In contrast to the contradictory and uncertain testimony from multiple eyewitnesses seen in McDonald, the eyewitness testimony from the two victims here was focused, consistent and assured. Both witnesses observed the robber in close proximity and in a well-lit environment. Both observed their assailant for at least 30 seconds. Both positively identified appellant at the police line up, the preliminary hearing and at trial. The only flaws in any of the six identifications were Garcias hesitancy at the lineup (which he later explained) and both witnesses failure to describe certain minor, distinguishing features (primarily appellants missing bottom teeth).

Moreover, in McDonald the reliability of the eyewitness identification was undermined by a very strong alibi defense. By comparison, appellants alibi defense was weak. Appellant testified he had been buying a car on the night of the robbery. The only corroboration for his alibi was the testimony of Dion Jones, a lifelong friend. On cross-examination Jones admitted his uncertainty about the exact date of the car purchase. Appellant did not produce any documentary or physical evidence to support his alibi. None of the other individuals either involved in the sale, or with whom appellant claimed he interacted that night appeared to testify.[3]

Furthermore, the eyewitness identification here was substantially corroborated by evidence giving it independent reliability. (McDonald, supra, 37 Cal.3d at p. 377.)

Eric Delk approached police and incriminated appellant independently of their investigationappellant was not considered a suspect at the time. Delks information included appellants boast about robbing the Beacon gas station and a description of appellants gun which matched the eyewitnesses descriptions.

The proposed testimony of Charles would also have corroborated the eyewitness accounts. The People expected her, like Delk, to give a similar description of the revolver and also to testify she and appellant lived two blocks from the gas station. The close proximity of appellants residence supported Garcias statement the robber fled on foot.[4]

Since McDonald, the Supreme Court has affirmed the trial courts exclusion of experts on eyewitness identification in every case where, as here, strong eyewitness testimony is corroborated by other evidence lending it reliability. (See People v. Jones (2003) 30 Cal.4th 1084, 1111-1112 [eyewitness-victim positively identified the defendant at preliminary hearing, plus corroboration by statements from two accomplices, one fellow gang-member, and one jailhouse informant]; People v. Sanders (1995) 11 Cal.4th 475, 505-510 [four eyewitnesses in close proximity, inside well-lit restaurant, plus corroboration by three independent informants and physical evidence from robbery found in the defendants home]; People v. Sanders (1990) 51 Cal.3d 471, 503-507 [one eyewitness gave accurate description and positive identification at police photo lineup plus corroboration by fingerprints, physical evidence from robbery and co-conspirator statement].) Accordingly we conclude the trial court did not abuse its discretion by excluding appellants expert on eyewitness testimony.

Moreover, even if the trial court erred in excluding appellants expert testimony, any error was harmless. (See McDonald, supra, 37 Cal.3d at p. 376 [trial courts exclusion of eyewitness expert is reviewed under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, and reversal is warranted only if a reviewing court finds it reasonably probable a result more favorable to defendant would have resulted absent the error].) In addition, McDonald focused on the length of the jurys deliberations (inferring from 19 hours of deliberationsthree times longer than the argument phasethat the jury found the case difficult to decide). (McDonald, at p. 376, fn. 23.)

The exclusion of Dr. Shomers testimony did not preclude appellant from arguing mistaken identity. Defense counsel did so by impeaching the eyewitnesses on cross-examination. She also made the reliability of eyewitness testimony a central theme of closing argument. Although Dr. Shomer may have added gravitas or empirical data to the arguments, it is not reasonably probable a different result would have obtained. The jury heard essentially the same arguments and still took under 45 minutes to return a guilty verdict. Counsel also forcefully presented defendants alibi defense and reiterated it in closing. The jury also found this unpersuasive. We therefore conclude appellant was not prejudiced by the exclusion of Dr. Shomers testimony. It is not reasonably probable a result more favorable to defendant would have obtained had the testimony been allowed.

II

Appellant also contends the trial court erred by admitting opinion testimony from Oakland Police Officer Jad Jadallah. Appellant asserts Jadallahs opinion testimony was speculative, unduly prejudicial, and inadmissible propensity evidence under Evidence Code sections 352 and 1101, subdivision (a).

A.     Background

The prosecution recalled Jadallah to testify in rebuttal. The prosecutor asked Officer Jadallah about his interview with appellant after appellant had been identified as the robber at the physical lineup. At one point the following exchange took place:

[Prosecutor]: Now, did you talk to [appellant] about his drug use?

[Jadallah]: Yes.

[Prosecutor]: What did he say about his drug use?

[Jadallah]: He said that he smokes crack cocaine.

[Prosecutor]: Did he say he smoked as in past tense, or did he say currently smoked crack cocaine?

[Jadallah]: Init was current.

[Prosecutor]: Did you ask him about any other drug or alcohol use?

[Jadallah]: He indicated that he drinks beer, but no hard alcohol.

[Prosecutor]: The fact that [appellant] admitted to currently smoking crack cocaine, did it have any significance to you?

[Jadallah]: Yes, it did.

[Prosecutor]: What was that?

[Jadallah]: Typically, people with drug habits commit robberies to support their habit.

[Defense counsel]: Objection. Speculation.

THE COURT: You can lay a foundation for him stating the opinion, if you wish.

[Prosecutor]: Thank you. [] You were part of the robbery team, is that right, for the Oakland Police Department?

[Jadallah]: Yes.

[Prosecutor]: And youve been investigating robberies?

[Jadallah]: Yes.

[Prosecutor]: For how long?

[Jadallah]: A little over four years.

[Prosecutor]: You said the area that you are investigating the robberies in includes a portion of East Oakland; is that right?

[Jadallah]: Yes.

[Prosecutor]: And how many robberies would you say that you have investigated?

[Jadallah]: Hundreds.

[Prosecutor]: And in investigating these hundreds-or-so robberies, have you made a connection between drug use, and the people that have committed the robberies?

[Jadallah]: Yes.

[Prosecution]: And what is that connection?

[Jadallah]: That they have drug habits.

[Prosecutor]: Is that oftentimes or all the time?

[Jadallah]: Often.

[Prosecutor]: Not necessarily all the time?

[Jadallah]: Thats correct.

[Prosecutor]: Did the fact that Mr. Wills admitted to smoking crack cocaine have any significance to you in relation to the information you learned from Eric Delk?

[Jadallah]: It was significant because it corroborated what Eric Delk had told officers.

B.     Discussion

The trial court has broad discretion in admitting opinion evidence. An appeal court may disturb the admission of opinion testimony only upon a clear showing of abuse of discretion. (People v. Clark (1970) 6 Cal.App.3d 658, 664.)

Evidence Code section 800 allows opinion testimony by lay witnesses when rationally based on the perception of the witness and helpful to a clear understanding of his or her testimony. (Evid. Code,  800, subds. (a) & (b).) A lay witness opinion should do no more than clarify their personal observation of a particular event. (People v. McAlpin (1991) 53 Cal.3d 1289, 1306-1307 [The Supreme Court goes on to cite examples of permissible lay opinion: the approximate speed of a bus (id. at p. 1307); the extent of an accident victims pain (ibid.); whether the defendant was acting irrationally (ibid.); whether an average person could withstand the force of a fall from a train (ibid.); whether the defendant was intoxicated (id. at p. 1308). In each case, the opinion helped describe an event the witness had directly observed.].) A lay witness may not express an opinion if he or she can adequately describe his or her observations without using opinion wording. (People v. Miron (1989) 210 Cal.App.3d 580, 583.) Whenever feasible, the jury alone should draw conclusions. (People v. Hurlic (1971) 14 Cal.App.3d 122, 127.)

Officer Jadallahs rebuttal testimony went beyond the permissible scope of lay opinion. The prosecution examined Officer Jadallah about his interview with appellant during the investigation of the robbery. Officer Jadallahs opinion about the correlation between drug use and robbery was not related to his perception of the interview, nor was it relevant to help the jury understand this particular robbery. Officer Jadallahs statements suggested appellants admitted drug use made it more likely he committed the robbery. Rather than help the jury better understand his personal observations during the interview, Officer Jadallahs opinion merely bolstered the prosecutions arguments. The prosecution could have attempted to offer the testimony as expert opinion under Evidence Code section 801. Officer Jadallahs testimony related facts beyond common experience and his background investigating robberies fit the threshold requirements of expert opinion testimony. The court seemed to expect this approach when it invited counsel to lay a foundation for Officer Jadallahs testimony. However, the People never offered Officer Jadallah as an expert, at which time the court would have considered fully whether expert opinion was even admissible on the topic for which it was offered. Defense counsel did not cross-examine Jadallah on his qualifications, object to any purported expertise or the propriety of expert opinion, or renew its earlier objection. Ultimately, during the discussion over jury instructions, the trial court correctly denied an expert witness jury instruction with respect to this testimony.[5]

The trial court erred by permitting Officer Jadallahs lay opinion. However, the defense did not move to strike the testimony nor request an admonishment to the jury. But any error with respect to the testimony was harmless because it is not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (supra) 46 Cal.2d 818, 836.)[6]

The two victims positively and confidently identified appellant as the robber and their testimony was corroborated by the statements of appellants step-brother, Eric Delk. The swiftness of the jurys verdict again suggests little deliberation was required to convict. Consequently, we cannot say exclusion of the testimony would have been likely to render a different verdict.[7]

Disposition

The judgment is affirmed.

_________________________

Parrilli, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.

[3] Appellant admitted his alibi was false at the sentencing hearing.

[4] Despite Delks recantation at trial, his statements to police were, in turn, corroborated by the testimony of Inspector Williams and Deputy Boyd. Nor is the trial courts ruling regarding corroboration affected by Charles failure to appear. (See People v. Welch (1999) 20 Cal.4th 701, 739. [We review the correctness of the trial courts ruling at the time it was made . . . and not by reference to [the state of the] evidence . . . at a later date].)

[5] Appellant also objects Officer Jadallahs testimony constituted unduly prejudicial and/or improper propensity evidence under Evidence Code section 1101. However, appellant failed to raise this objection before the trial court and therefore it is waived on appeal. (People v. Partida (2005) 37 Cal.4th 428, 431 [A defendant may not argue on appeal that the court should have excluded evidence for a reason not asserted at trial].) Moreover, we reject appellants contention counsels failure to object on propensity grounds constitutes ineffective assistance. Whether or not the evidence was admissible as propensity evidence, no prejudice can be ascribed to the failure to object. As set forth above, appellant fails to demonstrate a reasonable probability that Officer Jadallahs opinion testimony affected the verdict. (People v. Medina (1990) 51 Cal.3d. 870, 895).

[6] By acting within its discretion to apply ordinary rules of evidence the trial courts ruling did not affect appellants right to present an effective defense. Therefore, the federal constitution is not implicated. (People v. Cudjo (1993) 6 Cal.4th 585, 611.)

[7] Appellant asserts the errors here were cumulatively prejudicial. However, because we have determined there was no error, this contention fails.