PEOPLE v. JONES











Filed 1/31/11






IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S056364
v. )
)
ALBERT JONES, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. CR 53009
__________________________________ )


STORY CONTINUE FROM PART I….

Relying on Snyder v. Louisiana, supra, 552 U.S. 472, defendant argues that a reviewing court may not rely on body language to uphold a challenge. In Snyder, the prosecutor gave one nondemeanor reason for challenging a particular prospective juror (Brooks) and also said the juror appeared nervous. The high court concluded for many reasons that the nondemeanor reason was pretextual. The court then held that when the only nondemeanor reason given (i.e., the only reason a reviewing court can evaluate) is shown to be pretextual, a reviewing court should not uphold the challenge solely because the prosecutor also gave a demeanor reason, at least not when the trial court does not specifically cite that demeanor in its ruling. (Id. at pp. 479, 485.) The court explained that under the circumstances of that case, including the “absence of anything in the record showing that the trial judge credited the claim that Mr. Brooks was nervous,” and the pretextual nature of the other reason the prosecutor cited, “the record does not show that the prosecution would have pre-emptively challenged Mr. Brooks based on his nervousness alone.” (Id. at p. 485.) But the high court never suggested that demeanor is not a valid basis for a peremptory challenge. Here, the record does not show that the nondemeanor reasons the prosecutor gave were pretextual.
Defendant asks us to engage in comparative juror analysis regarding the prosecutor’s concern that G.G. was a bus driver in the area. The prosecutor said he “had concerns about this bus driver [i.e., G.G.], as well as other bus drivers.” Defendant claims this concern was insincere because the prosecutor did not similarly challenge two White jurors who were also bus drivers in the area. Defendant did not raise this issue at trial, but he does so for the first time on appeal. Despite problems inherent in conducting comparative juror analysis for the first time on appeal — including the difficulties of comparing what might be superficial similarities among prospective jurors and trying to determine why the prosecutor challenged one prospective juror and not another when no explanation was asked for or provided at trial — both the high court and this court have done so on request. (See Snyder v. Louisiana, supra, 552 U.S. 472; Miller-El v. Dretke, supra, 545 U.S. 231; Lenix, supra, 44 Cal.4th at p. 622.)^[1]
Defendant’s proffered comparative juror analysis is not very probative in this case. The prosecutor candidly stated he was concerned about all of the bus drivers, but he was not asked why he did not peremptorily challenge the others. The record strongly suggests race-neutral reasons why he chose to accept the others despite his concern that they were bus drivers. For example, the two bus drivers the prosecutor did not challenge said they were “strongly in favor” of the death penalty. G.G. rated himself as only “moderately in favor” of the death penalty. An attorney must consider many factors in deciding how to use the limited number of peremptory challenges available and often must accept jurors despite some concerns about them. A party concerned about one factor need not challenge every prospective juror to whom that concern applies in order to legitimately challenge any of them. “Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” (Lenix, supra, 44 Cal.4th at p. 624.) The comparison here provides no basis to overturn the trial court’s ruling.
Defendant argues that the prosecutor did not cite G.G.’s views on the death penalty as a reason for challenging him, and that we are limited to considering the reasons the prosecutor gave. We agree with defendant that in judging why a prosecutor exercised a particular challenge, the trial court and reviewing court must examine only the reasons actually given. “If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.” (Miller-El v. Dretke, supra, 545 U.S. at p. 252.) But we disagree with defendant’s further argument that we may not consider reasons not stated on the record for accepting other jurors. The prosecutor was not asked why he did not challenge the other bus drivers. When the trial court finds a prima facie case of improper use of peremptory challenges, the prosecutor must state the reasons for those challenges “and stand or fall on the plausibility of the reasons he gives.” (Ibid.) But no authority has imposed the additional burden of anticipating all possible unmade claims of comparative juror analysis and explaining why other jurors were not challenged. One of the problems of comparative juror analysis not raised at trial is that the prosecutor generally has not provided, and was not asked to provide, an explanation for nonchallenges. When asked to engage in comparative juror analysis for the first time on appeal, a reviewing court need not, indeed, must not turn a blind eye to reasons the record discloses for not challenging other jurors even if those other jurors are similar in some respects to excused jurors.
Regarding N.C., defendant argues that the prosecutor misstated N.C.’s answer to the question about his son having been accused of a crime. We agree that the record does not support the prosecutor’s statement: “I think it was attempt murder or murder.” The prospective juror did not specify on the questionnaire what the crime was. Although relevant, this circumstance is not dispositive. No reason appears to assume the prosecutor intentionally misstated the matter. He might have based what he thought on information he obtained outside the record. Or he may simply have misremembered the record. The prosecutor had to keep track of dozens of prospective jurors, thousands of pages of jury questionnaires, and several days of jury voir dire, and then he had to make his challenges in the heat of trial. He did not have the luxury of being able to double-check all the facts that appellate attorneys and reviewing courts have. Under the circumstances, it is quite plausible that he simply made an honest mistake of fact. Such a mistake would not show racial bias, especially given that an accurate statement (that N.C. wrote that his son had been accused of, and tried for, a crime but left the rest of the answer blank) would also have provided a race-neutral reason for the challenge.
The purpose of a hearing on a Wheeler/Batson motion is not to test the prosecutor’s memory but to determine whether the reasons given are genuine and race neutral. “Faulty memory, clerical errors, and similar conditions that might engender a ‘mistake’ of the type the prosecutor proffered to explain his peremptory challenge are not necessarily associated with impermissible reliance on presumed group bias.” (People v. Williams (1997) 16 Cal.4th 153, 189.) This “isolated mistake or misstatement” (People v. Silva, supra, 25 Cal.4th at p. 385) does not alone compel the conclusion that this reason was not sincere.
Defendant also asks us to compare the prosecutor’s challenge to N.C. with his failure to challenge another juror who stated on the questionnaire that her brother had been tried in Okinawa in 1978 for assault and battery. But being accused of a crime in Japan is different from being accused in this country. The other juror’s questionnaire suggested she favored the death penalty more strongly than did N.C. Moreover, the other juror apparently did not present the other concerns the prosecutor expressed about N.C. Just as with G.G., this comparative juror analysis for the first time on appeal has little probative value.
Defendant also argues the prosecutor misstated the circumstances surrounding N.C.’s pause before he answered defense counsel’s question whether he would favor defendant. We disagree. Defense counsel asked N.C. whether he “would have a tendency of trying to protect [defendant] on a case like this because you’re black.” N.C. answered, “Yeah. In a way.” On further questioning, N.C. said this answer related to earlier questioning regarding defendant’s hairstyle, and he later stated he would not protect defendant just because he was African-American. The prosecutor asked N.C. why he had hesitated so long before answering whether he would protect defendant. N.C. did not deny he hesitated, but responded, “I was just trying to get it right,” and reiterated that he could be fair to the prosecution. This further questioning dispelled any reason to excuse the juror for cause, but it did not automatically dispel any legitimate concern the prosecutor might have had. N.C.’s original statement that he might try to protect defendant may, as defendant now argues, have been based on a misunderstanding. But the circumstance that a prospective juror hesitates over whether he would favor (or try to protect) one side provides a valid reason for the opposing side to use a peremptory challenge out of caution. A peremptory challenge is not a challenge for cause but may be exercised whenever a legitimate reason appears for a party to worry whether that juror will be impartial.
Defendant also claims the prosecutor’s concern about N.C.’s “body language” in response to defense counsel’s talk about someone being falsely accused was not credible. He notes that no one directly asked N.C. about this point. But this is exactly the sort of reliance on body language that the trial court, but not a reviewing court, may and must evaluate. Defendant also claims the reliance on body language was insufficient because the prosecutor did not go on to describe exactly what the body language was. But an explanation need not be that specific. The prosecutor’s overall explanation regarding N.C. was clear and reasonably specific. We see no reason to overturn the trial court’s finding that the stated reasons for this challenge were sincere and race neutral.
Regarding D.L., defendant challenges the prosecutor’s reasons on several grounds, none convincing. The prosecutor candidly stated that he found her a “close” call because she had some good qualities. But he excused her (and several others) because he believed he had even better potential jurors who had not yet been called, and defendant had already exhausted his peremptory challenges. This explanation is plausible and race neutral.
Defendant claims the prosecutor’s concern that she was a member of the African Methodist Episcopal Church — which he assumed was the one in Los Angeles (D.L.’s questionnaire indicated she had lived in Los Angeles, was currently working in Los Angeles, and had been working there for seven years) — was itself discriminatory. But the prosecutor did not excuse her, as defendant claims, just because she belonged to a largely African-American church but because this particular church was, in his view, “constantly controversial,” and he did not “particularly want anybody that’s controversial on my jury panel.” Defendant also contends this explanation constituted impermissible discrimination based on religious affiliation. He did not object on that basis at trial and may not do so for the first time on appeal. (People v. Cleveland, supra, 32 Cal.4th at p. 734.) Moreover, the prosecutor did not excuse her because of her religious views but because he believed she belonged to a controversial organization.
Defendant also claims that the prosecutor’s “feeling that she would look down upon those kids,” whom he described as “kind of rough” “black kids,” was itself impermissible racial stereotyping. But the record shows that the prosecutor was concerned that this particular prospective juror might look down on his witnesses — due possibly to her “overbearing manner” — not that all African-Americans would look down on rough, youthful African-American witnesses. Defendant also argues that the prosecutor’s concern about D.L.’s failure to answer question No. 20 was insincere because he asked her no questions about it. Again, a party need not inquire into every possible concern that party may have regarding a prospective juror.
Defendant also challenges the validity of the prosecutor’s concern that D.L. might be “buying into some of this ‘falsely accused’ business.” But the concern was based on her “defensive” and “overbearing manner.” Again, the trial court must, but a reviewing court cannot, evaluate this explanation, and we must defer to the trial court’s determination. Defendant also asks us to compare the prosecutor’s challenge to D.L. with his failure to challenge two White jurors about whom, he claims, the prosecutor should have had similar concerns. Any such comparison proves nothing for several reasons. First, defendant asks us to make a false comparison. The other two jurors were part of the originally chosen jury. D.L. was being considered as an alternate. When the prosecutor had to decide whether to challenge D.L., it was too late to challenge either of the other two jurors. In deciding about D.L. (and others among the alternates), the prosecutor felt he had the luxury of challenging good jurors in the hope of obtaining even better ones. Thus, even if we (or the prosecutor at trial) were to view D.L. as more favorable to the prosecution than either of the other two, the prosecutor never had a choice between D.L. and them. Moreover, the record gives no indication the other two had body language comparable to what concerned the prosecutor about D.L. Finally, the other two’s answers on other points, for example, their stronger views in favor of the death penalty, suggested reasons to keep them, but not D.L., on the jury even if the prosecutor was concerned about them in this one respect.
Finally, defendant disagrees with the Attorney General’s argument that the prosecutor legitimately relied on the circumstance that challenging D.L. gave him the “chance to pick up some very strong jurors,” such as two who later became alternate jurors. Defendant asks us to compare D.L. with the two alternate jurors the prosecutor specifically mentioned, who identified themselves as “White” and “Caucasian (Portuguese),” respectively. He argues that D.L. was a stronger prosecution juror than those two. But the record suggests reasons the prosecutor could sincerely have believed the two would be stronger prosecution jurors than D.L. For example, one of the alternate jurors stated on the juror questionnaire that he was “moderately in favor” of the death penalty. Additionally, he stated that if “the defendant is found guilty of taking a life then his life should end,” and expressed strong agreement with the statement that “[a]nyone who kills another person should always get the death penalty,” explaining that “the person has taken a life.” The second alternate juror stated that he was strongly in favor of the death penalty. D.L. said she was moderately in favor of the death penalty and disagreed somewhat with the statement that “[a]nyone who kills another person should always get the death penalty.” Defendant cites other statements of these jurors and makes various arguments to support his view that the prosecutor should have considered D.L. to be a stronger prosecution juror than the other two, but he provides no reason for this court to conclude that the trial court was compelled to find insincere this portion of the prosecutor’s explanation for challenging D.L.
In sum, “a prosecutor, like any party, may exercise a peremptory challenge against anyone, including members of cognizable groups. All that is prohibited is challenging a person because the person is a member of that group.” (People v. Cleveland, supra, 32 Cal.4th at p. 733.) The record here shows that the prosecutor exercised his peremptory challenges to obtain a jury as favorable to his side as possible (just as defendant presumably exercised his peremptory challenges to obtain a jury as favorable to his side as possible), and not to eliminate African-Americans for racial reasons. This case presents no exceptional circumstances requiring us to overturn the trial court’s ruling. (See Snyder v. Louisiana, supra, 552 U.S. at p. 477.)

B. Guilt Phase Issues

1. Admission of Evidence of a Prior Robbery

Defendant contends the trial court erred in admitting evidence of the 1985 robbery in Vernon. We conclude it acted within its discretion.^[2]

a. Factual Background

Before trial, the prosecutor moved to admit evidence of three of defendant’s prior crimes: (1) the 1985 robbery in Vernon; (2) the 1992 robbery in Delano; and (3) a 1984 crime in which defendant used a 15-year-old juvenile to help him sell marijuana. The robberies were offered to prove defendant’s intent to steal, and the 1984 crime to show defendant’s pattern of using juveniles while committing crimes. Defendant objected to the evidence, and the court held a hearing.
The court excluded evidence of the 1984 crime. Because a question arose about the sufficiency of the evidence concerning the 1992 Delano robbery, the court ordered the prosecutor not to use it pending a further hearing. Accordingly, evidence of that robbery was not admitted until the penalty phase. But the court did admit evidence of the 1985 Vernon robbery “[o]n the issue of intent, and using the logic and reasoning of the Ewoldt decision.” (See People v. Ewoldt (1994) 7 Cal.4th 380.) Later the court stated that, in admitting the evidence, it had weighed its probative value against its prejudicial effect under Evidence Code section 352. It did, however, exclude as unduly inflammatory evidence that defendant had told the Vernon victims that he had killed before. Defendant filed a petition for writ of mandate in the Court of Appeal challenging the trial court’s ruling, which the appellate court summarily denied.^[3] Thereafter, defendant asked the trial court to change its ruling due to purported factual misstatements in the prosecutor’s original offer of proof. After hearing argument, the court refused to do so, still finding “sufficient similarities that it can come in for the purpose of intent.”
Accordingly, the jury heard the following evidence. Around noon on Saturday, August 3, 1985, three men, Raymond Latka, Robert Valdez, and Randy Vasquez, were leaving a furniture store in Vernon where they worked. A white LeBaron stopped abruptly in front of them, and two men, one identified as defendant, got out. Defendant pointed a blue Luger handgun at them, said it was a robbery, demanded their money, and threatened to kill them. The other man collected money from the three, hitting Vasquez in the process. They collected Valdez’s wallet, a wad of money from Vasquez, and six dollars from Latka. Defendant was convicted of his participation in the robbery.
The prosecutor discussed the Vernon robbery briefly in his argument to the jury, stressing that he had presented the evidence solely to show defendant’s intent to rob. The court instructed the jury on the limited purpose for which the jury could consider the evidence of the robbery. It told the jury not to consider the evidence to prove that defendant is a bad character or has a disposition to commit crimes, but only on the question of intent to commit robbery or burglary, and even then only if it first found beyond a reasonable doubt that defendant was one of the perpetrators of the charged crime at the Florville residence.

b. Analysis

Evidence of other crimes is not admissible merely to show criminal propensity, but it may be admitted if relevant to show a material fact such as intent. (Evid. Code, § 1101; see People v. Kelly (2007) 42 Cal.4th 763, 783.) To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented. The least degree of similarity is needed when, as here, the evidence is offered to prove intent. (People v. Kelly, supra, at p. 783.) As we have often explained, the recurrence of a similar result tends to negate an innocent mental state and tends to establish the presence of the normal criminal intent. (Ibid.; see People v. Ewoldt, supra, 7 Cal.4th at p. 402.) The determination whether to admit other crimes evidence lies within the trial court’s discretion. (People v. Kelly, supra, at p. 783.) We see no abuse of discretion.
The Vernon robbery and the Florville home invasion were not particularly similar, but they contained one crucial point of similarity — the intent to steal from victims whom defendant selected. Evidence that defendant intended to rob the Vernon victims tended to show that he intended to rob when he participated in the Florville crimes. This made the evidence relevant on that specific issue, which is all that the court admitted it for.
Defendant contends the court abused its discretion in not finding the evidence unduly prejudicial. (See Evid. Code, § 352.) We disagree. The court carefully exercised its discretion. It excluded evidence of the 1984 crime and of one inflammatory feature of the Vernon robbery — evidence that defendant told the victims he had killed before. The evidence was presented quickly, and the parties did not dwell on it. The Vernon robbery was not particularly inflammatory when compared with the horrendous facts of the charged crimes. The court instructed the jury on the proper purpose for which it could consider the evidence, which we presume the jury followed. (People v. Lindberg (2008) 45 Cal.4th 1, 25-26.) The fact that defendant was convicted of the Vernon robbery reduced any prejudicial effect, as the jury would not be tempted to convict defendant of the charged offenses in order to punish him for the previous crime, and defendant’s identity as one of the robbers had already been established. (People v. Balcom (1994) 7 Cal.4th 414, 427.)
Defendant argues that only identity was actually disputed at trial, and he did not dispute the perpetrator’s intent to rob at the Florville residence. Even if this is so, it is not dispositive. “[T]he prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.” (Estelle v. McGuire (1991) 502 U.S. 62, 69.) “The prosecution, of course, must prove each element of its case. Defendant’s assertion that his defense to the two charges was bound to focus upon identity, and not intent, would not eliminate the prosecution’s burden to establish both intent and identity beyond a reasonable doubt.” (People v. Soper (2009) 45 Cal.4th 759, 777.) The trial court properly exercised its discretion to admit this limited evidence for this limited purpose.
We also conclude that any error would have been harmless. Defendant’s identity as one of the Florville robbers — as well as his leadership position — was established by five witnesses who knew him well: Jack Purnell, Ryan McElroy, Deborah Russell, Mary Holmes, and Dorell Arroyo. They knew defendant well enough that they could not reasonably have been mistaken in identifying him. Their testimony was highly incriminating and mutually supportive. To posit defendant’s innocence, the jury would essentially have to conclude that all five committed perjury to have him falsely convicted, even though no credible reason appears why any — much less all five — would have done so. The five tended to be reluctant witnesses, and some lied to the police originally — either to avoid involvement or to protect defendant — but these circumstances do not show that they lied at trial to incriminate him. The circumstantial evidence, although not particularly strong by itself, also tended to corroborate these witnesses. Moreover, for the reasons explained above, the evidence of the Vernon robbery was not particularly prejudicial, especially given the limiting instruction the court gave the jury. Accordingly, we find no reasonable probability the verdict would have been more favorable to defendant had the court excluded evidence of the Vernon robbery. (People v. Carter (2005) 36 Cal.4th 1114, 1152.)

2. Admission of Evidence Regarding the Latex Gloves

Defendant contends the court erred in admitting the evidence that a teacher had observed A.J. walk out of a classroom carrying some latex gloves the November before the crime. When defendant objected to the evidence, the court held a hearing, and the witness testified outside the jury’s presence as an offer of proof. After the hearing, the court admitted the evidence that was actually presented, but it excluded evidence that shortly after the teacher observed A.J. walk out with the gloves, the gloves in the classroom were missing.
Defendant argues the evidence was irrelevant and, if relevant, should have been excluded as unduly prejudicial. “The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value.” (People v. Horning (2004) 34 Cal.4th 871, 900.) The court carefully exercised its discretion when it admitted some of the proffered evidence and excluded some of it. The challenged evidence was, by itself, not particularly compelling, but other evidence established that the perpetrators had used latex gloves in the Florville residence, presumably so as to not leave fingerprints. Evidence that A.J. had tried to take some latex gloves from a classroom shortly before the Florville crime tended logically to connect him to that crime. Because the witnesses generally said that defendant committed the crime with A.J., evidence connecting A.J. to the crime also logically connected defendant to that crime. Moreover, the evidence had virtually no prejudicial effect. It was presented quickly, and it is unlikely the jury would tend to convict defendant of a double murder out of outrage that A.J. had walked out of a classroom with latex gloves. We see no abuse of discretion.

3. Exclusion of Videotape Evidence

Defendant sought to admit two videotapes of the crime scene taken one and two years after the crime to impeach Dorell Arroyo’s testimony. The court excluded the tapes. Defendant contends the court erred. We disagree.

a. Factual Background

When defendant sought to present the videotapes, the district attorney objected on the basis that a camera does not show what the eye can see. In support of his objection, he cited People v. Boyd (1990) 222 Cal.App.3d 541. In response, defendant said he was not offering the tapes to show the lighting conditions at the time of the crime but merely to show the amount of natural light available at that time. He argued that such evidence was relevant to impeach Arroyo’s testimony that natural light was present. The court held an evidentiary hearing outside the presence of the jury.
Defendant presented evidence through two witnesses who did the videotaping that the two tapes were recorded, beginning around 5:15 a.m. each of the two days, under natural lighting conditions that were similar to the conditions at the time of the crime, and that the tapes reflected what those witnesses could see under those natural lighting conditions. The prosecutor attempted to cross-examine the first defense witness regarding whether the lighting conditions at the time of the taping, including artificial lighting, were similar to the lighting conditions that existed at the time of the crime. Defendant objected that he was not attempting the show the actual lighting conditions but only the natural lighting, and that, therefore, questions about artificial lighting were irrelevant. He argued that Arroyo had testified that he could see due to natural light; therefore, evidence regarding the natural lighting was relevant to impeach Arroyo, even if it did not show the actual lighting conditions. He suggested the court give the jury a limiting instruction on the limited purpose for which he offered the tapes.
Because Arroyo had also testified that a motion detector light was on next door to the crime scene, the court observed, “How does one determine, articulate or not, what is the source of the light‌ I mean, all they know is they can see.” The court expressed the view that the relevance of the tapes would be to illustrate what Arroyo could or could not see. After watching and listening to the tapes, the court also believed that the videotapers were able to see things that the camera did not show. It noted that “the naked eye can see what the camera doesn’t — or at least what the tape doesn’t pick up.” It was concerned that it would mislead the jury for it “to see basically a blank screen for 45 minutes.” When defense counsel offered to “fast-forward it,” the court responded, “For whatever time it takes is, in my opinion — based upon what I saw and what I heard, is deceiving the jurors because they cannot see on the tape what obviously someone at the scene could see.” The court overruled defendant’s objection to the prosecutor’s asking questions regarding the actual lighting conditions at the time of the taping. Thereafter, the witnesses’ testimony made clear that the tapes did not reflect the actual lighting conditions, including artificial lights, that prevailed at the time of the crime.
The prosecutor indicated that he had a witness waiting who could testify concerning video cameras and, after defendant finished presenting his evidence, he offered to call that witness. The court, however, stated it was ready to rule on the question without an additional witness, so the prosecutor never presented his witness. After hearing argument, the court excluded the tapes. Regarding “the issue as to what [Arroyo] was able to see,” the court found “that these particular tapes would be unduly confusing and misleading to the jury on that most key issue.” Regarding possible impeachment of Arroyo’s testimony, the court excluded the tapes under Evidence Code section 352. It explained it would “allow testimony to impeach him as to what time he was able to see by natural light. But to use these tapes to try to impeach him with that, I think, would unduly influence the jury, that this is a replication of what the actual light was, and we don’t know that. I don’t know that anybody could have replicated that. So I think the use of these tapes would be terribly inappropriate. Under [section] 352, I am not going to allow them.” The court stressed, however, that the witnesses could testify about what they could see; it was just excluding the tapes themselves.

b. Analysis

In People v. Gonzalez (2006) 38 Cal.4th 932, we upheld the exclusion of a videotape offered to show the lighting conditions at the time of the crime. We explained that “ ‘[t]o be admissible in evidence, an audio or video recording must be authenticated. [Citations.] A video recording is authenticated by testimony or other evidence “that it accurately depicts what it purports to show.” [Citation.]’ (People v. Mayfield (1997) 14 Cal.4th 668, 747.) ‘In ruling upon the admissibility of a videotape, a trial court must determine whether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case or serve to mislead them.’ (People v. Rodrigues[ (1994) 8 Cal.4th 1060,] 1114.)” (People v. Gonzalez, at p. 952.)
In both People v. Gonzalez, supra, 38 Cal.4th at pages 952-953, and People v. Boyd, supra, 222 Cal.App.3d at pages 565-566 (the case the prosecutor cited to the trial court), the trial court properly excluded a videotape offered to show the lighting conditions because the videotape did not, in fact, accurately show those conditions. In this case, defendant does not claim the tapes he offered accurately reflected the actual lighting conditions. In fact, the record shows that the tapes did not reflect those conditions. Defendant made no attempt, for example, to account for the artificial light that the evidence showed existed at the time of the crime. But defendant seeks to distinguish Gonzalez and Boyd on the basis that he did not offer the tapes to show what the lighting conditions were, but only to show the amount of natural light that was available. He argues that Arroyo had testified that there was some natural light available and that the tapes would impeach this testimony by showing there was no natural light.
The court acted within its discretion in excluding the evidence offered for this very narrow purpose. “A party who seeks to introduce experimental evidence must show as foundational facts that the experiment was relevant, that it was conducted under conditions the same as or substantially similar to those of the actual occurrence, and that it ‘will not consume undue time, confuse the issues, or mislead the jury [citation].’ [Citation.] The party need not, however, show that the conditions were absolutely identical. [Citations.] Under Evidence Code section 352, the trial court has wide discretion to admit or reject experimental evidence. We reverse decisions to admit or exclude such evidence only when the trial court has clearly abused its discretion.” (People v. Boyd, supra, 222 Cal.App.3d at pp. 565-566.)
Here, after viewing the tapes, the court was concerned that they did not accurately show what the naked eye could actually see even under the conditions of the taping. In People v. Gonzalez, supra, 38 Cal.4th at page 952, there was expert testimony that “the human eye is able to see things in the dark better than a video camera . . . .” The record here does not contain such evidence, possibly because the prosecutor did not present its expert witness when the court indicated it was ready to rule without that testimony. But even if we assume that the videotape did reflect what the eye could actually see under only natural lighting, the trial court had discretion to exclude it. This is because Arroyo and other witnesses testified that there was artificial light as well as natural light. As the trial court observed, a witness will know whether and what he could see, based on whatever source of light exists, but would not ordinarily distinguish how much of the actual lighting was due to natural light and how much to artificial light. Because the record shows that artificial light existed at the time of the crime, the trial court could, in its discretion, reasonably conclude that trying to isolate one portion of the available light could serve only to confuse, not assist, the jury. The trial court permitted defendant to present evidence regarding the lighting conditions at the time of the crime, and he presented substantial such evidence. But it also reasonably found that the videotapes themselves would not assist the jury in determining the facts but would instead serve to mislead them. (People v. Rodrigues, supra, 8 Cal.4th at p. 1114.) We see no abuse of discretion.


TO BE CONTINUED AS PART III….



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