P. v. Leslie
Filed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF
SECOND APPELLATE DISTRICT
DIVISION
THE PEOPLE, Plaintiff and Respondent, v. DEREK L. LESLIE, Defendant and Appellant. | B188977 ( Super. |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Andrew Kauffman, Judge. Affirmed.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General of the State of California, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
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Appellant Derek Leslie was convicted, following a jury trial, of two counts of second degree robbery in violation of Penal Code[1] section 211. The jury found true the allegations that appellant personally used a firearm in the commission of the offense within the meaning of section 12022.53, subdivision (b). The trial court found that appellant had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a), and section 667, subdivisions (b) through (i) and 1170.12 (the " three strikes" law). The court also found that appellant had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a total term of 22 years in state prison.
Appellant appeals from the judgment of conviction, contending that the trial court erred in limiting the testimony of his expert on eyewitness identification. We affirm the judgment of conviction.
Facts
On
Del Carmen's wife called the police. When the police arrived, they told the men that they had arrested " some guys." The police took Del Carmen to look at the men. He identified the two men who had taken his cell phone, and the fourth man who just stood by during the robbery. Appellant was not in the group of men viewed by Del Carmen. Del Carmen gave police a description of appellant.
Del Carmen identified appellant in court as the robber with the gun. He based his identification on appellant's face, a teardrop tattoo near appellant's eye, and a tattoo on his forearm.
A few weeks to a month after the robbery, a detective showed Rios a " group" of " several" photos in a book or booklet. Rios identified a photo of appellant as being the robber with the gun. Rios also identified appellant at trial and was certain of his identification. Rios testified at trial that the robber with a gun had a tattoo on his arm. The police also showed Rios's brother the photographs. According to Rios, his brother picked out someone who " wasn't the person."
The parties stipulated that appellant has letters tattooed on his left forearm and a teardrop tattoo under his left eye.
In his defense, appellant offered the testimony of Dr. Robert Shomer, a forensic psychiatrist, who testified as an expert on eyewitness identification. He testified about a number of factors which might affect the accuracy of eyewitness identification, such as the passage of time, the use of a weapon and racial differences.
Discussion
Appellant contends that the trial court erred in limiting his eyewitness expert's testimony to general factors about eyewitness identification. He contends that the trial court should have allowed Dr. Shomer to discuss how the case was investigated and the procedures used at the time Rios made his out-of-court identification. We do not agree.[2]
" 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 [emphasis added].) Nevertheless, " the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily within the trial court's discretion." (Ibid.)
Here, eyewitness identification was the key element of the prosecution's case. The trial court did allow Dr. Shomer to testify on specific psychological factors shown by the record, such as differences in race and the use of a gun, that could have affected the accuracy of the identification.
The trial court excluded Dr. Shomer's testimony on the Rios identification procedure in part because the testimony did not describe the procedure in any detail. The court asked appellant's trial counsel: " Well, what testimony did we hear about how the suspects were presented?" Appellant's counsel acknowledged: " Well, I mean [Rios] touched on the procedure. He didn't get there, just touched on the issue." The court responded: " There was no procedure." We see no error in this ruling.
Rios testified that a detective showed him a " group" of photos and there were " several" photos. He described the photos as being in a book or booklet. It is simply not clear from Rios's testimony what was involved in the identification. Rios might have been shown a six-pack photographic line-up, or photographs on individual pages in booklet form or a book with many pictures on a page. The jury had no way to know the exact procedure used. Without such knowledge, any testimony by Dr. Shomer about the strengths or weaknesses of various procedures would have been irrelevant.
Appellant does not explain what testimony Dr. Shomer would have offered on the investigation of this case, or, to look at it from a different angle, what part of the investigation would warrant testimony by an eyewitness identification expert. We have reviewed the record and see nothing that would warrant such testimony. The record shows that there was a field show-up on the day of the robbery, but that appellant was not present at that show-up. Thus, no testimony was needed on this procedure in appellant's trial.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] Respondent contends that appellant has waived this claim by failing to object. We agree with appellant that any objection would have been futile. The court referred to Dr. Shomer as a " so-called eyewitness identification expert." The court also instructed appellant's counsel to make it clear to Dr. Shomer that he would not be permitted " to render any opinion as to the manner in which that identification previously was obtained" because Dr. Shomer " has difficulty accepting it." The court had clearly considered this restriction in the past, in cases involving Dr. Shomer, and had made the same decision over and over. An objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820.)
