People v. Garcia

• Citation: 28 Cal.App.5th 961,239 Cal.Rptr.3d 558
• Decision Date: 01 November 2018
• Docket Number: E068490
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard GARCIA, Defendant and Appellant.

28 Cal.App.5th 961

239 Cal.Rptr.3d 558

The PEOPLE, Plaintiff and Respondent,

v.Richard GARCIA, Defendant and Appellant.

E068490

Court of Appeal, Fourth District, Division 2, California.

Filed November 1, 2018

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal, Randall Einhorn, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FIELDS, J.

I. INTRODUCTION

Following a jury trial, defendant and appellant, Richard Garcia, was convicted of first degree residential burglary. ( Pen. Code, § 459.)¹ Defendant admitted having one prior strike/prior serious felony conviction and one prison prior, and he was sentenced to 14 years in prison, including a five-year consecutive term based on his prior serious felony conviction. (§ 667, subd. (a) (hereafter § 667(a) ).)² In this appeal, defendant claims the court abused its discretion and deprived him of his due process right to present a defense by excluding the expert testimony of Dr. Robert Shomer concerning the reliability of eyewitness identifications. We find no merits to these claims. But we remand the matter for resentencing pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393). S.B. 1393 amends sections 667(a) and 1385, subdivision (b) (hereafter § 1385(b) ), effective January 1, 2019, to give courts discretion to dismiss or strike a prior serious felony conviction for sentencing purposes. In all other respects, we affirm the judgment.

II. FACTS AND PROCEDURAL HISTORY

A. Prosecution Evidence

Around 10:30 a.m. on April 25, 2014, Richard Knowles, who lived in Barstow, was returning home from a walk when he observed a large black vehicle parked on the street between his driveway and the driveway of his next-door neighbor, Sherisa Clark. The vehicle was facing the wrong direction. Knowles also observed a young Hispanic woman in the driver’s seat of the vehicle and a White male in the back seat behind her. A second White male came through Knowles’s side gate and got into the back passenger seat.

Knowles also observed a Hispanic man walk through Clark’s side gate, down her driveway, and get into the front passenger seat of the vehicle. The vehicle then drove away. Later on April 25, Detective Keith Libby showed Knowles a six-pack photographic lineup containing a photograph of defendant in the first position. Knowles told the detective that the first photograph "looked like one of the guys" he saw coming from Clark’s home, but at trial, in October 2015, Knowles and Detective Libby both testified that Knowles was "hesitant, uncertain" about his identification of defendant as the Hispanic male. Knowles told the detective he did not look very well at the Hispanic male’s face.

At trial in October 2015, Knowles recalled that the Hispanic male was wearing a "hoodie" and a red plaid flannel shirt, and was "a little bit buffed up" so Knowles did not want to "mess with him." Knowles testified he "got a look" at the Hispanic male, but the "detail" was "lost" to him because he was not wearing his glasses and the incident occurred quickly. Thus, at trial, Knowles did not "positive[ly]" identify defendant as the Hispanic male. But Knowles was able to read the vehicle’s license plate number and called 911 shortly after the vehicle drove away. Department of Motor Vehicle records showed the vehicle was a Chevrolet Blazer, registered to defendant, and defendant lived in Victorville. On April 25, 2014, officers did not find defendant at his Victorville address.

The police found signs of forced entry into Clark’s home, including pry marks on a side door leading into the garage and pry marks on the interior garage door leading into the home. A blue crowbar which could have made the pry marks and which did not belong to Clark was found inside the home. Latent fingerprints were taken from inside the home, but all of the fingerprints that were suitable for comparison matched Clark’s fingerprints; none of them matched defendant’s fingerprints.

Clark’s bedroom had been "completely ransacked" and the rest of her home had been "somewhat ransacked." A watch, approximately $200 in cash, jewelry, and medical marijuana were missing. No one had permission to be in Clark’s home or take her property. Clark did not know defendant. As Clark was leaving her home before the burglary on April 25, she noticed a large vehicle she had never seen before, parked on her street several houses away from hers and facing the wrong direction.

Clark returned home shortly after the burglary, accompanied by her friend, Daniella Watkins. Outside Clark’s home, Knowles told Watkins that one of the suspects he saw was a White male with a "purple thing on his cheek." Watkins told Detective Libby that the description sounded like Joshua Kemp, who was "like [her] brother-in-law." Watkins also testified she had grown up with defendant, who was known as Richie, and that defendant and Kemp were "good friends." Before trial, defendant’s friend Cassy contacted Watkins and asked whether Watkins would be coming to court, which made Watkins feel "[t]hreatened."

A records check on Kemp revealed he had a purple face tattoo and was wearing a global positioning system ankle monitor at the time of the burglary as a term of his "county parole" or Post-Release Community Supervision. Global positioning system records placed Kemp near Clark’s home at the time of the burglary and showed that Kemp traveled from Clark’s home to defendant’s home in Victorville after the time of the burglary. In April 2015, around one year after the burglary, Knowles identified Kemp from a six-pack photographic lineup as the White man he saw leaving Knowles’s property. In identifying Kemp, Knowles was "again uncertain" and "hesitant" about his identification, and was "confused between three of the [six] photos."

Defendant was arrested in August 2014 and later made several phone calls from jail. During one jail call with an unidentified female, defendant said:

"I’m really nervous, I’m just hoping they don’t have no fingerprints, if they don’t then I’m going to fight that shit."

Defendant also made several jail calls to his father. He told his father that "Josh was pretty much busted. They got him there with a monitor ...." Defendant also mentioned that Clark’s house had been processed for fingerprints, so he did not "want to keep waiving time" and "wait for fuckin something like that to come up." He said Cassie was willing to write a statement for him, and asked his father to ask Kemp’s cousin, Rickie, to contact Kemp so that Kemp could make a statement saying he "had nothing to fuckin do with it."

In another jail call, defendant asked his father to "[r]ing Victoria’s mom ... and try to set up a witness, saying you know, that I was there at the house the whole time when that shit happened." Defendant’s father told defendant that Kemp’s aunt, Kelly, would testify that defendant was at "[Kelly’s house] the whole day ... and she didn’t see, she didn’t hear [defendant’s] truck leave."

B. Defense Evidence

In August 2015, Kemp pled guilty to the burglary in this case. At trial, Kemp testified he took defendant’s Chevrolet Blazer while defendant was asleep at Kelly’s house, and that defendant "had nothing to do with" the burglary and was not with Kemp during the burglary. Kemp said he used a blue crowbar to break into the victim’s home. Shortly after the burglary, Kemp stopped by defendant’s house because he was running out of gas and knew defendant had gas in his work trailer. Kemp told a defense investigator he acted alone in committing the burglary, but at trial Kemp said he did not remember whether another person was with him. Kemp had several prior felony convictions.

III. DISCUSSION

Defendant claims the trial court abused its discretion and violated his due process right to present a defense in refusing to allow Dr. Shomer to testify as a defense expert on eyewitness identifications. He claims Dr. Shomer’s testimony was necessary to inform the jury of several factors bearing on the reliability of Knowles’s pretrial identification of him as the Hispanic male Knowles saw leaving Clark’s property following the burglary. We find no merit to these claims.

A. Relevant Background

Around one week before trial, the defense informed the prosecution that it would be proffering the testimony of Dr. Robert Shomer, an expert on the psychological factors affecting the reliability of eyewitness identifications. The prosecution later filed a motion to exclude the testimony, arguing, among other things, that it should be excluded because Knowles’s identification of defendant was "substantially corroborated by evidence giving it independent reliability." ( People v. McDonald (1984) 37 Cal.3d 351, 377, 208 Cal.Rptr. 236, 690 P.2d 709 ( McDonald ).)

The court deferred ruling on the motion until after Knowles and other witnesses had testified and ultimately excluded Dr. Shomer’s testimony on the ground it would be unduly time-consuming and not "at all" helpful to the jury in evaluating the reliability of Knowles’s eyewitness identification of defendant. The court pointed out that Dr. Shomer could not explain anything relevant about eyewitness identifications that a jury could not understand; the case was based on circumstantial evidence and Knowles’s identification was not the "reasonable basis" of establishing defendant’s guilt; that Knowles was "far from certain" of his identification; and any expert testimony concerning six-pack identification procedures was irrelevant because there was no evidence that Knowles’s six-pack identification of defendant was "improper." The court also pointed out that, if Dr. Shomer testified, the court would be inclined to allow the prosecution to call an expert to contradict or explain Dr. Shomer’s testimony.

B. Applicable Law and Analysis

Expert opinion...