Opinion
B225981
09-26-2011
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA061125)
APPEAL from a judgment of the Superior Court of Los Angeles County. Susan M. Speer, Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Vernon Marsh was convicted, following a jury trial, of one count of second degree murder in violation of Penal Code section 187, one count of attempted murder in violation of sections 187 and 664, and one count of shooting into an occupied motor vehicle in violation of section 246. The jury found true the allegations that in the commission of all the crimes, appellant personally used and intentionally discharged a firearm and proximately caused great bodily injury or death, within the meaning of section 12022.53, subdivisions (a) through (d). The trial court sentenced appellant to a total term of 40 years to life in state prison.
Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion for a mistrial during voir dire, violated his Sixth Amendment rights by admitting a tape of a 911 call and a prior identification by a witness, and incorrectly instructed the jury on causation. Appellant further contends that his counsel was ineffective in failing to object to certain identification evidence. We affirm the judgment of conviction.
Facts
On October 22, 2006, about 9:30 a.m., Gabriel Delira Caro ("Caro") and his friend, Giovanni Mariona, were driving in Caro's vehicle. Caro stopped at a red light at Desoto and Sherman Way. Mariona yelled out his gang neighborhood, "Canoga," which surprised Caro. Caro got a very brief look at a Black male walking toward his car holding a gun, but was shot almost immediately. He heard additional gunshots as things got "darker and darker."
When a conditional examination of Caro was conducted later in the hospital, Caro remembered that the shooter appeared angry and had flaring nostrils. Caro explained that Mariona was in a Hispanic gang, and that typically there was a rivalry between Black and Hispanic gang members. When showed a photo of appellant, Caro testified that appellant looked familiar, stating "I remember his nose."
About ten minutes after the shooting, Los Angeles Police Sergeant William Sanders went to the intersection of Desoto and Sherman Way in Los Angeles County. He observed that Caro had been shot and was still seated inside his vehicle. Mariona was standing outside the vehicle trying to comfort Caro. Caro had a gunshot wound that entered through his chin and exited through the back of his neck. Mariona had also been shot in the bicep area and had a shirt wrapped around his arm. A Los Angeles Fire Department rescue ambulance arrived. Both Caro and Mariona were taken to the hospital.
Sergeant Sanders observed bullet holes in Caro's vehicle. He did not observe any guns or other weapons inside the front or the back of the vehicle. Six bullet casings were recovered from the scene. All were fired from the same pistol.
At least three people called 911 about the shooting. The police tried but failed to identify the three callers. Recordings of those calls were played for the jury. Caller #1 identified himself as "Ray Zapata" and said he had been waiting for a bus. Zapata described the shooter as a Black man wearing dark pants who ran away toward Independence. Zapata stated there was a Hispanic woman with a bull dog who also went toward Independence. Caller #2 described the shooter as a Black man wearing a black sweatshirt jacket and grey shorts, about six feet tall and "young looking." The shooter ran north on Desoto and crossed the street headed westbound. Caller #3 said the shooter was "either Black, Hispanic, or really really dark" and was wearing a black hooded sweatshirt and black pants.
Other witnesses did come forward. Miguel Palacios was driving on Sherman Way toward his church in Canoga Park and stopped behind Caro's car at the corner of Desoto and Sherman Way. Palacios noticed there were two bald "Hispanic-looking" men inside the car who "looked like gang members." Palacios also noticed appellant holding a light-colored pit bull on a leash. Appellant was walking with a Hispanic-looking woman. Palacios did not recall seeing any other African-American men in the area.
Palacios saw appellant give the dog's leash to the Hispanic woman and walk toward the corner while lifting his sweater or sweatshirt and pulling something from his waist with his right hand. The sweater or sweatshirt was black with a "gray square inside" and had a hood. Palacios looked at the victims' car, thought he "heard firecrackers," and then looked toward appellant. He saw appellant firing a handgun into the car from a distance of about 10 feet. Appellant's facial expression appeared very angry. Palacios did not see any gunfire coming from the victims' car. Palacios quickly drove away.
About 5:30 p.m., Palacios returned to the scene of the shooting and spoke with the police. Palacios described the shooter and the shooter's clothing. The police showed him a sweater, which Palacios identified as the sweater worn by the shooter. At trial, Palacios identified People's Exhibit 12 as the shooter's sweater. Palacios told police that the shooter was Black, about 5' 9" or 5' 10" tall, had short hair, and appeared on the heavy side "maybe because of the sweater."
About 6:00 p.m., the police showed Palacios a photographic lineup. Palacios identified appellant as the shooter. He was "100 percent" certain that the photograph he picked was the shooter. Palacios identified appellant in court at the preliminary hearing and at trial. Palacios noted that appellant's hair was shorter during the shooting.
The shooting was also witnessed by Robert Heman and his wife, Linda Lacy, who were having breakfast at Darby's Coffee Shop. Heman heard "very rapid" gunfire, looked out, and saw appellant positioned near a telephone pole stepping off the sidewalk and walking across Desoto at a 45-degree angle heading north or northwest. Appellant was holding a handgun with the barrel exposed as he walked rapidly around a corner. As appellant crossed the street he made eye contact with Heman. Heman saw appellant for three to four seconds from about 50 feet away. Lacy also heard the gunshots and saw appellant crossing the street while trying to put a handgun in his pants. Appellant wore "baggy clothes" including a black sweatshirt with a white t-shirt underneath.
Heman used another person's cellular telephone to call 911 as he left the coffee shop and walked out into the intersection. The police arrived within two or three minutes. Heman told the police that the shooter was wearing a charcoal-gray sweatshirt with a hood, a light-colored shirt underneath the sweatshirt and dark sweats. He appeared to be six feet tall, between 200 and 250 pounds, and had very short black hair. Lacy told police that the shooter was about six feet tall and weighed about 200 pounds.
Detective Leduff came to Heman's and Lacy's home the evening after the shooting. Heman was shown a photographic six-pack and wrote down: "Number two or four face and head shape." Heman wrote this because "that's what [he] noticed most about [the shooter]."
Lacy was sitting nearby while Detective Leduff was speaking with Heman. When Heman was shown some photographs, Lacy got up from where she was sitting and went over to see the photographs because she was curious to see them. Lacy looked at the photographic six-pack and identified the person depicted in position four as the person with a gun. Detective Leduff then separated Lacy from Heman and presented her with a different photographic six-pack. She circled the photograph of appellant. Lacy explained that she heard Heman select numbers two and four, but this did not influence her identification. Lacy was "95 percent" certain of her identification at that time and the in-court identification she made at the preliminary hearing.
On April 9, 2008, Heman identified appellant as the shooter. Heman made an in-court identification of appellant as the shooter. Heman was "very certain" that appellant was the shooter. Heman noted that appellant's hair appeared longer at trial.
Lacy identified appellant at the preliminary hearing and at trial. Lacy noted that at trial appellant appeared thinner and had more hair.
Daniel Farrel and Eva Pena were working at Wienerschnitzel near the intersection of Desoto and Sherman Way when the shooting occurred. Pena was inside the restaurant at the time. She looked out and saw an African-American man walking through an alley toward the restaurant. She also saw a heavy-set Hispanic-looking woman walking toward the alley with a dog. The man and woman met in the alley. The man appeared to be covering up something in his hand with a cloth. Pena may have told police that the couple went to the apartments across the street from the restaurant. Pena was able to identify appellant as a customer of the restaurant, but not as the shooter.
Farrel had prior convictions and did not initially want to be involved in the case, but ultimately decided to cooperate with the police and testify at appellant's trial. Farrel testified that he was outside sweeping when he saw appellant and a woman walking a pit bull. The woman was holding the leash. Farrel recognized appellant and the woman as past customers. Appellant was a customer about two times a week for between 18 and 24 months.
Farrel continued sweeping until he heard a gunshot coming from the corner of Desoto and Sherman Way. Farrel looked that direction and saw appellant shooting into a car. Appellant walked back across the street toward Farrel. Appellant was holding a metal object "up around his arms." They made brief eye-contact and then Farrel looked at the ground to make "it seem like [he] didn't see anything" and pretended to sweep. Appellant walked away toward some apartments on Loma Verde. The woman and the dog walked to the same apartments. Farrel had seen appellant and the woman together on other occasions. Farrel told Los Angeles Police Officer Scott Crowe that he was 100 percent sure, or "110 percent" sure that appellant and the woman lived at 7219 Loma Verde.
Danita Armstrong also testified at trial. At the time of the shooting, she had been staying with appellant and his girlfriend, Elroy, in their apartment. Armstrong was interviewed by the police twice. During the first interview, which took place the day of the shooting, she withheld information, but let the police search the apartment. Officer Crowe and other officers found photographs of appellant and Elroy, as well as appellant's wallet containing his identification and other personal items. They found the sweatshirt identified by Palacios. They also found appellant's pit bull, Capone.
During the second interview, Armstrong told the truth, which was as follows: On the day of the shooting, Armstrong woke up around 9:15 to 9:30 a.m. She did not see appellant or Elroy at home at that time. Armstrong took a shower. About 15 minutes later, Elroy knocked on Armstrong's door and asked if Armstrong could give her and appellant a ride to Long Beach. Armstrong said she could give them a ride to the Orange Line for the Metro. Elroy seemed upset and was crying. Armstrong drove them to the Orange Line at Victory and Winnetka. As they drove through the intersection where the shooting occurred there were many police cars. Armstrong noticed that Elroy looked like she was going to throw up in the car. Appellant and Elroy did not return to their apartment that day.
At some point, the pit bull found in the Loma Verde apartment was taken to the West Valley Animal Shelter at 20655 Plummer Street. Lester Baron worked there as an animal control officer. On October 25, 2006, a woman came to the shelter to inquire about a pit bull named Capone. There was a man with the woman. Baron identified photographs of appellant and the woman as these two people who inquired about Capone. The police had alerted the shelter to contact them if anyone tried to claim Capone. Another person, Larry Herskovic, spoke with the woman. Baron called the police, but the couple left before the police arrived a few minutes later.
Herskovic spoke with the police, and was honest at the time, but at trial could no longer remember the details of what he told the police. Los Angeles Police Officer Leduff interviewed Herskovic. Herskovic told Officer Leduff that he was "80 percent" sure that the man he saw at the shelter was the same man depicted in photographs provided by the police.
Appellant was arrested on March 26, 2007. Appellant's booking information indicates he was six feet tall and weighed 200 pounds.
Caro was rendered a quadriplegic by the shooting. He eventually died on November 24, 2008.
Dr. Susan Selser worked as a forensic pathologist for the Coroner's Office. She performed an autopsy on Caro. Caro's medical history indicated Caro had quadriplegia, a mandibular fracture, a tracheostomy, gastrostomy, and ultimately pneumonia and sepsis. Caro died on November 24, 2008. Dr. Selser explained that the cause of death was the "sequelae of the gunshot wound" which meant essentially that he had multiple complications associated with persons rendered quadriplegic by a gunshot wound. She opined that based on her medical findings she believed that Caro "died as a result of this infection that developed as a result of his being paralyzed from the gunshot wound[.]"
Discussion
1. Mistrial motion during voir dire
Appellant contends that the comments of Prospective Juror No. 5367 tainted the jury pool and that the trial court erred in denying his motion for a mistrial based on those comments. He further contends that the denial of the mistrial resulted in a violation of his state and federal constitutional rights to due process, equal protection and a jury trial. We do not agree.
A trial court has broad discretion to determine "whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required." (People v. Medina (1990) 51 Cal.3d 870, 889; People v. Nguyen (1994) 23 Cal.App.4th 32, 41.) In reviewing the trial court's decision, we look at "the totality of the circumstances surrounding jury selection." (People v. Martinez (1991) 228 Cal.App.3d 1456, 1465.) A mistrial is not appropriate "merely because a few prospective jurors have made inflammatory remarks." (People v. Medina, supra, 51 Cal.3d at p. 889.) "[D]ischarging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venire persons would be insufficient protection for the defendant." (Ibid.)
Here, during voir dire, Juror No. 5367 revealed that she had a father who was a retired Los Angeles police officer, an uncle who was a retired homicide detective, a nephew with the California Highway Patrol and a brother-in-law who was a deputy district attorney in Oregon. She stated: "My dad worked the Watts riots, the '91 riots, and I was in high school when busing started, so I just think it would be hard to be an impartial juror." The court clarified: "Based upon your strong connection to law enforcement?" Juror No. 5367 agreed. The court asked, "How will [your strong connection to law enforcement] affect you in this case, do you think, if at all?" Juror No. 5367 replied: "Yesterday you said to a juror to do some soul searching and I was thinking about the defendant over there and I was listening to all of the officers that may be called and there was approximately 15. One or two could be bad apples, but if 13 show up, could I be fair? [¶] I don't know."
Further questioning prompted Juror No. 5367 to state, "I would just tend to believe the police officers, yes, based on my upbringing, yes."
Juror No. 5367 then volunteered: "I look at the faces in the jury and I think if I were in his position, I mean it's not politically correct to say, but there's no Black jurors. There's no - I'd be screwed." The court asked, "The defendant's screwed?" Juror No. 5367 replied, "No, but I would not want to be in his position." She explained, "There's nobody with the same face, the same - no, sorry. I know that's not politically correct." The court asked Juror No. 5367 if she would have sympathy for the defendant based on that situation and she replied, "No."
Court recessed for lunch shortly thereafter. During the break, appellant's counsel made a motion for a mistrial, arguing that Juror No. 5367 had "poisoned the entire jury panel." Counsel stated: "[S]he went on and on about the race riots, Blacks, the fact is she was staring my client down, she was craning her neck to get a view of my client the whole time. I finally moved out of the way so she could get a better view. I think she was staring him down." Counsel pointed out that Juror No. 5367 said, "Look around, Your Honor, I mean there's not a single Black - - there's not a single Black person in this jury. If I were him, I'd be worried, I think he's screwed. And I think that poisons the entire panel." Counsel acknowledged that "there could be an argument, it could work for us or against, but I think she's poisoning the entire panel."
The court denied the motion for a mistrial, finding that there was no "detriment to the defense. If anything, it to me was a sympathetic fact that she noticed and if anything I think it would engender sympathy on the part of the other jurors." The prosecutor stipulated that Juror No. 5367 could be dismissed for cause.
The court offered to admonish the jury. After input from counsel, the court gave the following admonishment to the jury:
"All right, before we proceed with further questioning, I just want to admonish all of you that the make up of the jurors when a person is constitutionally guaranteed to a jury of his peers, that does not necessarily translate to a jury of a certain percentage of the same race as that person. It's a legal issue sometimes, but that is only a legal issue that would be handled outside the presence of the jurors.
"So you are not to consider the remarks made by [Prospective Juror No. 5367] or anyone else that would suggest that this trial is somehow unfair based upon the racial make up of the jurors and potential jurors.
"Do not let the answers of [Prospective Juror No. 5367] or any other answers you may have heard during the course of this trial influence you in any way. You must decide this case only based upon the evidence and the law as I give it to you.
"The race of the defendant or of the jurors or even the witnesses is largely immaterial unless it somehow becomes relevant in terms of -- for some other reason. But other than that, you should not consider race or consider sympathy or bias against the defendant for any reason whatsoever."
The court then asked: "Is there anyone who cannot follow this admonition?" The court noted that no juror raised his hand to indicate that he was unable to follow the instruction.
Appellant contends that he was nevertheless prejudiced by Juror No. 5367's remarks because some jurors may have had latent racial biases, may have resented the insinuation of racial bias and may have taken their resentment out on him. We are not convinced.
Juror No. 5367's remarks most strongly conveyed that she was trying to get out of jury duty. She volunteered her race-related remarks, about race riots, busing and jury composition. She clearly had an awareness that her remarks would not be acceptable (saying repeatedly her remarks were "not politically correct"). Further, her remarks about jury composition seemed more designed to taunt appellant than to accuse the other jurors of racial bias. This is particularly true since she expressly denied feeling any sympathy for appellant and since she was trying "to stare [appellant] down." Thus, we see no reasonable probability or possibility that the other jurors understood Juror No. 5367's remarks as directed at them or as seriously insinuating that the other jurors were racially biased.
We see no abuse of discretion in the trial court's denial of the motion for a mistrial and no violation of appellant's constitutional rights.
2. 911 tapes
Appellant contends that the trial court erred in admitting tapes and/or transcripts of three 911 calls about the shooting in this case, and that this error violated his confrontation rights as set forth in Crawford v. Washington (2004) 541 U.S. 36.
In Crawford, the U.S. Supreme Court held that the Confrontation Clause prohibits the use of "testimonial" statements made out of court to prove the guilt of an accused unless he is given the opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 57.) The Court in Crawford declined to give a comprehensive definition of "testimonial," but indicated that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." (Id. at p. 68.)
In Davis, the Court clarified that not all police interrogations produce testimonial statements which are subject to the requirements of the Confrontation Clause. (Davis v. Washington (2006) 547 U.S. 813, 822.) The Court explained: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822.) The Court specifically noted that "[a] 911 call, . . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances requiring police assistance." (Id. at p. 827.)
In Davis, the Court pointed to several circumstances which would suggest that an interrogation is to enable police assistance to meet an on-going emergency: (1) the person speaking with police is describing events as they are actually happening rather than describing past events; (2) a reasonable listener would recognize that the person was facing an on-going emergency and was calling for help; (3) the nature of what was asked and answered, viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency rather than simply to learn what had happened in the past and (4) the person's answers are not calm and are provided from an atmosphere that is not tranquil. (Davis v. Washington, supra, 547 U.S. at pp. 826-827.)
We find that the circumstances of the 911 calls in this case, viewed objectively, show that the primary purpose of the initial police questioning was to enable police and paramedic assistance to meet an ongoing emergency.
The initial statements of all three callers focused on someone being shot. Caller #1 interrupted the operator five times to urge her to "hurry up," to get help to the scene "real quick" and "right now." Caller #2 reminded the operator three times that someone was hurt at the scene. Further, the initial questions by the operator focused on the location of the shooting and the victim. These initial questions were clearly necessary to direct paramedics and police to the scene to resolve the emergency.
The 911 operator next asked the callers about the shooter(s) and where the shooter went after the shooting. The 911 operator's questions could objectively and reasonably be understood as gathering information to determine whether paramedics and police should be prepared for the presence of the assailant at the scene, and so were not testimonial. (See Davis v. Washington, supra, 547 U.S. at p. 827 [operator's efforts to establish identity of assailant so that police might know whether they would be encountering a violent felon at scene were necessary to resolve the present emergency].)
Further, although the calls took place after the shooting, and after the shooter fled, the tapes and transcripts of the 911 calls show that the callers were still upset and unnerved by the shooting when they made their calls. Caller #1's statements are full of urgency and repetition, and the operator had to urge him to calm down so that he could answer questions. Callers 2 and 3 showed their nervousness by repeating themselves. (See Davis v. Washington, supra, 547 U.S. at p. 828 [911 caller's "frantic answers" provided over the phone from an environment that was "not tranquil" was a circumstance that indicated the caller was not acting as a "witness" and that what she said was not "'a weaker substitute for live testimony' at trial"].)
Since the callers' statements were not testimonial, they were admissible under the Sixth Amendment if they fell within a firmly rooted hearsay exception or bear particularized guarantees of trustworthiness. The spontaneous declaration hearsay exception is a firmly rooted hearsay exception. (See Crawford v. Washington, supra, 541 U.S. at p. 58, fn. 8.)
The trial court found that the callers' statements fell under the spontaneous statement exception to the hearsay rule, as set forth in Evidence Code section 1240. Appellant does not contend that this ruling was incorrect. Thus, evidence of the 911 calls were properly admitted.
Further, even assuming for the sake of argument that the tapes were erroneously admitted, there is no reasonable possibility or probability that appellant would have received a more favorable result in the absence of the tapes. The descriptions were not detailed or consistent with each other. The other evidence against appellant was strong. Palacios, Heman, Lacy and Farrel all positively identified appellant as the shooter. Pena placed an African-American man with a woman and a pit bull at the intersection at the time of the shooting, and saw them go to some nearby apartments. Armstrong provided evidence that appellant lived nearby with a woman and a pit bull, and that the couple left abruptly for Long Beach minutes after the shooting.
3. Ineffective assistance of counsel
Appellant contends that his counsel was ineffective in failing to attack identifications by Heman and Lacy as being based on unduly suggestive procedures.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
The admission of identification evidence violates a defendant's right to due process of law if "(1) . . . the identification procedure was unduly suggestive and unnecessary, and, if so, (2) . . . the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 989.) The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. (Ibid.)The defendant must show "unfairness as a demonstrable reality, not just speculation." (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
Appellant contends that the identifications by Heman and Lacy amount to an identification by committee and is remarkably similar to the group identification found impermissible in People v. Nation (1980) 26 Cal.3d 169. He concludes that a challenge to these identifications would have been successful. We do not agree.
In Nation, three witnesses "were permitted to confer and come to an agreement concerning which of several mugshots was that of the perpetrator. [The witnesses] . . . were unable to identify the defendant in a subsequent police lineup." (People v. Hawkins (1995) 10 Cal.4th 920, 949 [summarizing Nation].)Here, there was no conferring and no group agreement.
Heman selected two photographs with no input from Lacy. There is absolutely no basis to find the photographic lineup suggestive as to Heman.
Lacy simply overheard Heman pick two photos. She then picked a photo herself. This photo was one of the two selected by Heman. In effect, however, her choice represented a disagreement with Heman, since she rejected the second photo, which Heman believed had a fifty percent possibility of being the shooter. Further, unlike the witnesses in Nation, Lacy subsequently viewed a different photo lineup and was able to independently select appellant from those photos. There was no live police lineup in this case, but Lacy later independently identified appellant when they saw him in person at the preliminary hearing and at trial.
Appellant also points out that one witness in Nation was shown a single photograph of the defendant and asked if he was the man she had seen at the scene of the crime. Appellant contends that Heman's selection of two photographs meant that Lacy was effectively only shown two photographs and this is just as suggestive as the one photograph in Nation. We do not agree that two photographs are as suggestive as a single photograph, much less that knowing that another witness picked two out of six photographs is the same as being shown only one photograph.
Lacy testified that her husband's choices did not influence her. Appellant offers only speculation that it did. It is possible that Lacy believed that her husband was keenly observant and had an excellent visual memory and therefore must have been correct in narrowing the photo lineup to two people, but it is equally possible that she believed that he was unobservant and had a poor memory and therefore gave no weight to his selections. Speculation is not enough.
Even assuming for the sake of argument that the photographic lineup procedure was unduly suggestive, the identifications were still reliable under the totality of the circumstances. Thus, a challenge by appellant's counsel would still have failed. Heman watched the shooter for about four seconds and made eye contact with him. Lacy watched for five or six seconds. It was broad daylight. Both were paying close attention because there had just been a shooting. Both described the shooter as a Black man about six feet tall. Heman estimated the shooter's weight at 200 to 250 pounds while Lacy put it about 200. Heman described the shooter as wearing a charcoal gray sweatshirt while Lacy described it as a black sweatshirt. These descriptions matched appellant's appearance. The identifications occurred the same day as the shooting, when events were fresh in Heman's and Lacy's minds.
Finally, even assuming that the identifications should have been excluded, we see no reasonable probability that appellant would have received a more favorable outcome if Heman's and Lacy's identifications had been excluded. The evidence against appellant was strong. Palacios positively identified appellant as the shooter as did Farrel. Pena placed an African-American man with a woman and a pit bull at the intersection at the time of the shooting. She also saw them go to some nearby apartments. Armstrong provided evidence that appellant lived nearby with a woman and a pit bull, and that the couple left abruptly for Long Beach minutes after the shooting.
4. Herskovic's prior identification
The trial court permitted Detective Lebuff to testify about statements made by Larry Herskovic, an employee of the West Valley Animal Shelter which housed Capone, the pit bull found in appellant's apartment. Specifically, Detective Lebuff testified that three days after the shooting, Herskovic viewed a photo of appellant and told the detective that he was 80 percent certain that the person in the photograph was the man who came to the shelter with a woman looking for the pit bull. Herskovic remembered the couple's visit to the shelter. He also remembered the subsequent visit by police and being shown one or more photographs, but did not remember making the identifications.
Appellant contends that the trial court erred in admitting evidence of a prior statement by Herskovic and this error violated his state and federal rights to due process and confrontation. He further contends that the error was prejudicial.
The Confrontation Clause gives every accused the right "to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) A hearsay statement does not violate the Confrontation Clause if the declarant is available and subject to cross-examination. (Crawford v. Washington, supra, 541 U.S. at pp. 49-50, fn. 6.)
Prior to Crawford, the U.S. Supreme Court held that witnesses who experienced memory loss were considered available for purposes of cross-examination. (See, e.g., United States v. Owens (1988) 484 U.S. 554, 558-559; California v. Green (1970) 399 U.S. 149, 149-152.) In Owens, the Court specifically considered the situation of a witness who was unable, because of a memory loss, to testify concerning the basis for his earlier identification. The Court held that the Confrontation Clause was not violated by the admission of the out-of-court identification statement of the witness. (U.S. v. Owens, supra, 484 U.S. at p. 564.)
The Court also made it clear that "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Delaware v. Fensterer (1985) 474 U.S. 15, 20.) "The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." (Id. at pp. 21-22.)
As appellant acknowledges, no court has held that the admission of an out-of-court statement by a witness with memory loss violates Crawford. We see no reason to create such a rule here. Herskovic was present at trial, and did have a memory of events surrounding his identification. Cross-examination might have shown that Herskovic was generally an inattentive person, or had no eye for detail, for example, and thereby indirectly undermined his identification of appellant. It would even have been possible to question him about some details of his identification. For example, he could have been asked what he would mean today if he said he was 80 percent certain of an identification.
At least one federal court, the Seventh Circuit Court of Appeal, has found that Crawford is not violated by the admission of such a statement. (United States v. Ghilarducci (7th Cir. 2007) 480 F.3d 542, 548-549; see also Yanez v. Minnesota (8th Cir. 2009) 562 F.3d 958, 964 [in light of Owens and Crawford, state court's admission of out-of-court statement by witness with memory loss was not constitutionally defective].)
Appellant also contends Herskovic's identification was not really an identification, and should have been excluded pursuant to Evidence Code section 352. He contends that the identification had virtually no probative value because Herskovic was only 80 percent certain of his identification and the identification was based on a single photograph. He contends the identification was prejudicial because it linked him to the couple with the dog seen near the murder.
Admission of identifications such as the one by Herskovic are the norm. Such identifications do have some probative value. The "prejudice" referred to in Evidence Code section 352 applies to evidence that uniquely tends to evoke an emotional bias against one side. (People v. Crittenden (1994) 9 Cal.4th 83, 134.) That type of prejudice was not present here. Accordingly, we see no abuse of discretion in the trial court's overruling of appellant's section 352 objections.
Even if we were to assume for the sake of argument that the trial court erred in admitting the identification, any error would be harmless beyond a reasonable doubt. As we discuss, ante, the evidence against appellant was strong. Herskovic's identification was a very small part of the case. Further, Lester Brown, who also worked at the shelter, testified at trial. He also identified Elroy and appellant as the people who came to the shelter to find Capone and remembered doing so.
5. Instructional error
Caro lived for about two years after appellant shot him, and his immediate cause of death of sepsis. The court instructed the jury that when there is more than one cause of death for a victim, a defendant is liable for the death only if the injury he inflicted was a "substantial factor" in causing the death. Appellant did not object to this instruction or request any other instructions on causation.
Appellant now contends that the trial court had a sua sponte duty to instruct on medical negligence as a "superseding cause" of Caro's death, and that the court's instruction above was inaccurate and incomplete.
Appellant has forfeited his claim of instructional error. (People v. Jennings (2010) 50 Cal.4th 616, 671 ["[t]o the extent defendant argues that the jury additionally should have been instructed pursuant to the second sentence in CALJIC No. 3.40, the failure to request this instruction on causation forfeited any claimed error"]; People v. Lang (1989) 49 Cal.3d 991, 1024 ["A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language"]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 [a defendant must request a modification or clarification of a jury instruction that "is generally an accurate statement of law" or the claim is forfeited on appeal].)
Further, even assuming for the sake of argument that the claim was not waived, we would see no merit to appellant's argument. A trial court need only instruct on theories that are supported by the substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162; see also People v. Autry (1995) 37 Cal.App.4th 351, 360-362 [trial court did not err in failing to instruct on independent intervening cause where the evidence did not show an independent intervening cause].)
Appellant did not offer any expert medical testimony of his own. On appeal, he relies on a statement from the medical examiner that infections are "common" in persons with quadriplegia to argue that if Caro died from a common infection, it raises the specter of medical negligence.
Appellant's argument equates "common" with easy to cure or prevent. The medical examiner testified that the various infections found in Caro's body during the autopsy were ones that "I commonly see as sequelae of gunshot wounds in patients that are paralyzed." She also testified that bedsores "are very commonly seen with patients who are paralyzed and bedridden." The doctor's use of the word "common" meant frequent. If anything, this shows that such infections are not easy to prevent. There is no way to know from this testimony if these common infections are easy to cure or not. Thus, there is no evidence from which to infer medical negligence.
Clearly, all the "patients" seen by the medical examiner were deceased, so at least as to those patients, the infections were not cured.
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Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J. We concur:
TURNER, P. J.
MOSK, J.