People v. Therman CA3 ( 2021 )

Filed 10/19/21 P. v. Therman CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091147
Plaintiff and Respondent, (Super. Ct. No. 18FE024651)
v.
SHYLOW MENYON THERMAN,
Defendant and Appellant.
A jury found defendant Shylow Menyon Therman guilty of first degree murder
and found true allegations of robbery-murder special circumstances and firearm use. The
jury also found that defendant had a prior serious felony conviction. The trial court
sentenced defendant to life without the possibility of parole for special circumstance
murder, plus 25 years to life for the firearm enhancement.
Defendant appeals, arguing the trial court prejudicially erred by (1) admitting law
enforcement testimony identifying him in surveillance videos, (2) admitting expert
testimony regarding firearms toolmark comparison, and (3) instructing the jury on
1
alternative theories of murder pursuant to CALCRIM No. 548. We reject these
contentions and affirm.
I. BACKGROUND
A. The Shooting
Joe and Doretha, husband and wife, drove to a small Sacramento shopping center
on December 22, 2018, around 5:00 p.m. They parked their minivan and went into a
Money Mart check cashing store.
Doretha cashed a check at the Money Mart. The couple then went to a liquor store
next door, where they bought lottery tickets and beer.
Joe and Doretha returned to their minivan. Doretha sat in the passenger seat,
counting her money. The passenger window was partly rolled down. A man wearing a
light blue sweatshirt appeared at the passenger window and demanded the money. The
man was holding a gun. The man and Doretha wrestled over her wallet.
A Money Mart employee heard yelling and looked outside. She saw a man
wearing a blue hoodie standing by the passenger side of the minivan and “kind of
wrestling” with Doretha. She did not see the man’s face.
Joe ran into the Money Mart to ask for help. As he was opening the door, he heard
a gunshot. He ran back to the car, where he found Doretha, “laid out.” She was not
breathing. Joe saw a man walking away into the darkness.
Joe ran back inside the Money Mart and asked the employees to call 911. Joe then
remembered that he had a cell phone in his pocket. He called 911 within minutes of the
shooting. He told the 911 operator that the shooter was an African American man
wearing a “blue hoodie and black jeans.”
Sheriff’s deputies arrived and found Doretha slumped over in the minivan, with
blood flowing from her mouth and nose. An autopsy would later reveal that Doretha died
of a gunshot wound to the head.
2
B. The Investigation and Arrest
Crime scene investigators processed the minivan and surrounding area. A .40
caliber Smith and Wesson cartridge casing was recovered from the ground near the
passenger side of the vehicle.1 Video surveillance footage was collected from the liquor
store and Money Mart.
Sheriff’s detectives interviewed Joe around 9:30 p.m. on the night of the shooting.
Joe described the shooter as an African American man in his 30s, with a slender face,
pointy chin, and scruffy goatee. He estimated the shooter weighed between 180 and 200
pounds and stood between 5 feet 8 inches and 6 feet 2 inches tall. He recalled that the
shooter was wearing a blue hoodie and black pants.
During the interview, Joe was shown video footage from a surveillance camera
inside the liquor store. Joe recognized only himself and Doretha in the video. But he
noted that another man in the video was wearing the same color blue as the shooter.
Defendant was arrested on December 26, 2018, four days after the shooting. A
search incident to arrest uncovered a Glock semi-automatic .40 caliber handgun in
defendant’s waistband. The handgun was partially loaded and had a live round in the
chamber. A search of a car registered to defendant’s wife and parked outside defendant’s
home uncovered a dark-colored beanie similar to one worn by the suspect in the
surveillance video.
Joe was asked to view a live lineup in May 2019, some five months after the
shooting. The lineup included defendant, but Joe picked someone else.
1 Latent fingerprints and a DNA sample were also recovered from the minivan; however,
this evidence would prove to have limited utility, as the fingerprints were not identifiable
as defendant’s and DNA analysis was inconclusive.
3
C. The Charges and Jury Trial
Defendant was charged by first amended information with first degree murder
(Pen. Code, § 187, subd. (a))2 with a special circumstance, namely, that the murder
occurred during the commission or attempted commission of a robbery (§ 190, subd.
(a)(17)). The information further alleged that defendant personally used a firearm during
the commission of the crime (§ 12022.53, subds. (b) - (d)), and that he had been
convicted of a serious felony within the meaning of the Three Strikes law (§§ 667, subds.
(b) - (i) and 1192.7). Defendant pled not guilty and denied the allegations.
Defendant was tried before a jury in November 2019. The prosecution’s witnesses
testified substantially as described ante. The jury also heard the evidence described post,
which was admitted over defense objection.
Catherine Currier, a criminalist with the Sacramento County District Attorney’s
Office, Laboratory of Forensic Services, testified as an expert on firearms toolmark
identification. Currier examined the gun found on defendant and determined that it was a
Smith and Wesson Glock model 23, with a polygonally rifled barrel. Currier explained
that a polygonally rifled barrel differs from a conventionally rifled barrel in the direction
of twist and number of lands (raised areas) and grooves (depressed areas). Currier
preliminarily examined the class characteristics of the cartridge casing recovered from
the scene and determined that they were consistent with the gun.
Currier explained that the tools used to manufacture firearms, and ordinary use or
damage post-manufacture, leave unique—or individual—marks on firearm components,
such as the breech face and firing pin. These marks, Currier continued, can be transferred
onto the surface of a cartridge casing in the process of firearm discharge. As a firearms
examiner, Currier elaborated, she uses a comparison microscope to compare the marks on
2 Undesignated statutory references are to the Penal Code.
4
one or more cartridge casings fired from a gun of known origin, to one fired from a gun
of unknown origin.3 If the marks are sufficiently similar, Currier said, she can conclude
that the cartridge casings were fired from the same gun. According to Currier, this
approach to firearms identification is generally accepted in the scientific community.
Currier test-fired defendant’s gun, using unspent cartridges from its magazine.
She then compared the test-fired cartridge casings with the recovered cartridge casing,
making a photographic record of her observations through the comparison microscope.
Referring to the photographs, Currier explained that three dimensional striations (or
striae) could be seen on the breech face mark, firing pin impression, and firing pin
aperture sheer of the test-fired cartridge casings, which corresponded to similar striae on
the recovered cartridge casing. Based on her examination, Currier concluded that the
test-fired cartridge casings and recovered cartridge casing were fired from the same gun.
Currier noted that an independent firearms examiner had reviewed her work and agreed
with her conclusion. Defense counsel declined to cross-examine Currier.
Sacramento County Sheriff’s Detective Marcos Camacho was one of the several
detectives assigned to investigate the shooting. Camacho testified that he became aware
of a traffic stop photograph of defendant in the course of his investigation. Camacho
went on to say that he spent approximately one hour with defendant following his arrest
on December 26, 2019. During this time, Camacho said, he observed defendant’s
physical bearing and movements, and studied the contours of his face. Camacho also
received and reviewed booking photographs of defendant and attended the preliminary
hearing and live lineup, where he again observed defendant from various angles.
Camacho testified that he carefully reviewed the surveillance video from the
liquor store, focusing on footage in which an individual can be seen moving towards the
3A comparison microscope consists of two microscopes connected by an optical bridge,
which allows for simultaneous, side-by-side comparisons.
5
camera for five to 10 seconds. Camacho explained that he analyzed the video from the
liquor store on a frame-by-frame basis, and examined still photographs from the video,
which were shown to the jury. Camacho also observed that the beanie found in the car
parked outside defendant’s house was similar to one worn by the suspect in the
surveillance video. Based on the foregoing, Camacho opined that the suspect in the
surveillance videos was defendant. Camacho explained: “The height, the weight, the
overall body structure, primarily the bone structure of his chin. He has a pointed chin.
It’s very unique. That’s evident in the video and also evident when you are in person
with the defendant.”
Camacho also testified that he had reviewed surveillance video showing the
outside of the Money Mart. Camacho opined that an individual shown standing near Joe
and Doretha’s minivan, and wearing a blue hoodie, was the same as the suspect from the
liquor store video.
D. Closing Arguments and Jury Instructions
The parties’ closing arguments focused on the identity of the shooter. The
prosecutor argued that defendant saw Joe and Doretha in the liquor store and noticed that
they were flush with cash from their trip to the Money Mart. It was then, the prosecutor
argued, that defendant formulated a plan to rob them. When the robbery failed, the
prosecutor continued, defendant decided to kill Doretha.
The prosecutor acknowledged that Joe had not been able to identify defendant in
the live lineup. The prosecutor also acknowledged that one of the surveillance videos
appears to have shown defendant leaving the liquor store and turning right, while Joe and
Doretha turned left. Nevertheless, the prosecutor reminded jurors that Detective
Camacho had studied defendant and identified him as the person in the liquor store video.
The prosecutor emphasized that Joe, though unable to identify defendant as the shooter,
had nevertheless provided a description that matched both defendant and the person in
the surveillance videos. The prosecutor reminded jurors that defendant had been found
6
with the gun and black beanie four days after the shooting and urged them to find him
guilty of first degree murder under either felony murder or premeditation and deliberation
theories.
During the defense closing argument, trial counsel acknowledged that defendant
was the person in the liquor store video, but maintained he was not the shooter. Defense
counsel played the video for the jury, noting that defendant appeared to pay no particular
attention to Joe and Doretha, left the liquor store before them, and walked in the opposite
direction from their minivan. Defense counsel observed that the Money Mart’s security
camera was triggered by motion and argued that the shooter appeared in the parking lot
and triggered the camera after defendant left. Defense counsel emphasized that there was
no DNA evidence tying defendant to the crime, and Joe had repeatedly failed to identify
him as the shooter.
Following closing arguments, the trial court properly instructed the jury on first
degree murder under the theories of premeditation and felony murder. (CALCRIM Nos.
520, 521, and 540A.) As relevant here, the trial court also instructed the jury with
CALCRIM No. 548, which provided, in pertinent part: “You may not find the defendant
guilty of murder unless all of you agree that the People have proved that the defendant
committed murder under at least one of these theories. You do not all need to agree on
the same theory, but you must unanimously agree whether the murder is in the first or
second degree.” 4
E. Verdict and Sentence
4 The trial court’s instructions conformed to a previous version of CALCRIM No.
548. (CALCRIM No. 548 (Sept. 2019 rev.).) Further references to CALCRIM No. 548
are to this version.
7
The jury found defendant guilty of first degree murder after several hours of
deliberation. (§ 187, subd. (a).) The jury found true the special circumstance allegation
that the murder was committed during the commission of an attempted robbery.
(§ 190.2, subd. (a)(17).) The jury also found true allegations that defendant used a
firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing
death (§ 12022.53, subd. (d)). In a bifurcated proceeding, the jury also found true an
allegation that defendant had a prior conviction for armed bank robbery.
Defendant appeared for sentencing on December 20, 2019. The trial court
sentenced defendant to life without the possibility of parole for the special circumstance
murder, plus 25 years to life for the firearm enhancement. This appeal timely followed.
II. DISCUSSION
A. Lay Opinion Identification Testimony
Prior to trial, the prosecution brought a motion in limine seeking to admit
Detective Camacho’s testimony that defendant was the person shown in the surveillance
videos from the liquor store and Money Mart.5 The trial court granted the motion over
defense objection. Defendant argues Camacho’s lay opinion testimony was erroneously
admitted and violated his rights to due process and a fair trial. We are not persuaded.
Lay opinion testimony is admissible if it is both rationally based on the perception
of the witness and helpful to a clear understanding of the witness’s testimony. (Evid.
Code, § 800.) As relevant here, a person who did not witness a crime may identify a
defendant from photographs or surveillance video if the person has personal knowledge
of the defendant’s appearance and the testimony will assist the trier of fact in resolving
5 The prosecution also sought to admit lay opinion identification testimony from another
detective, who was involved in the investigation, but was also familiar with defendant
from an unrelated case. The trial court denied the motion as to the other detective.
8
the identity issue. (People v. Leon (2015) 61 Cal.4th 569, 600-601 (Leon); People v.
Mixon (1982) 129 Cal.App.3d 118, 128 (Mixon); People v. Perry (1976) 60 Cal.App.3d
608, 614-615 (Perry).) We review a trial court’s admission of lay opinion testimony for
abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128-130.)
“Court of Appeal decisions have long upheld admission of testimony identifying
defendants in surveillance footage or photographs.” (Leon, supra, 61 Cal.4th at p. 601.)
In Perry, supra, another panel of this court held that a police officer’s identification of
the defendant as one of two robbers seen on a surveillance film of the crime was
admissible as lay opinion testimony because the officer was familiar with the defendant
from numerous contacts over the previous five years. (Perry, supra, 60 Cal.App.3d at p.
610.) In Mixon, the court held that an officer’s identification of the defendant as the
person seen in surveillance photographs taken during the commission of the robbery was
an admissible lay opinion because the officer had “previously acquired familiarity with
[the defendant’s] features.” (Mixon, supra, 129 Cal.App.3d at p. 132.) In both cases, the
officers’ identifications were based on their personal knowledge of the defendants from
contacts before the robbery; this helped the juries because each defendant had altered his
appearance before trial. (Mixon, supra, at p. 130; Perry, supra, at p. 613.)
Our Supreme Court extended the reasoning of Perry and Mixon in Leon. (Leon,
supra, 61 Cal.4th at p. 601.) There, the trial court admitted a detective’s testimony
identifying the defendant as the person shown on surveillance videos of two robberies.
(Id. at pp. 600-601.) The detective testified that he became familiar with the defendant’s
appearance through his participation in the defendant’s arrest a day after one of the
robberies, and from later seeing him “nearly 10 times.” (Id. at p. 600.) The detective
also observed that the jacket the defendant wore during the arrest was similar to one worn
by one of the robbery suspects in the video. (Ibid.)
The defendant challenged the admission of the detective’s testimony on appeal,
arguing that Perry and Mixon were distinguishable because the officers in those cases had
9
contacts with the defendants before the crimes. (Leon, supra, 61 Cal.4th at p. 601.) The
high court rejected the defendant’s argument, stating: “This is a distinction without a
difference. It is undisputed [the detective] was familiar with defendant’s appearance
around the time of the crimes. Their contact began when defendant was arrested, one day
after the [robbery captured in the video]. Questions about the extent of [the detective’s]
familiarity with defendant’s appearance went to the weight, not the admissibility, of his
testimony.” (Ibid.) Moreover, the court continued, jurors had been shown the video, and
“could make up their own minds about whether the person shown was defendant.” (Ibid.)
Leon is fatal to defendant’s claim of error. Like the detective in Leon, Detective
Camacho became familiar with defendant’s appearance through his participation in
events surrounding defendant’s arrest. (Leon, supra, 61 Cal.4th at p. 600.) As previously
discussed, Camacho spent approximately one hour with defendant following his arrest on
December 26, 2019, four days after the shooting. Camacho was thus familiar with
defendant’s appearance “around the time of the crimes.” (Id. at p. 601.) Here, as in
Leon, any question regarding Camacho’s familiarity with defendant’s appearance “went
to the weight, not the admissibility, of his testimony.” (Ibid.) That Camacho may have
had no prior familiarity with defendant is not determinative. (Id. at p. 600.)
Defendant argues that Detective Camacho’s testimony was not helpful to the jury,
as jurors were equally capable of watching the videos and determining whether they
depicted him or someone else. But Camacho testified that he had observed defendant on
several occasions and studied defendant’s physical bearing and the contours of his face
from various angles. Camacho also testified he had reviewed booking photos of
defendant and examined the surveillance videos on a frame-by-frame basis. From these
close observations, Camacho determined that defendant has an unusually pointy chin, a
feature that can also be seen on the video from the liquor store. Although jurors were
able to observe defendant in the courtroom, they might not have been able to study his
movements or the contours of his face. Certainly, they would not have had the
10
opportunity to study him closely. The trial court could reasonably conclude that
Camacho’s “testimony was based on his relevant personal knowledge and aided the
jury.” (Leon, supra, 61 Cal.4th at p. 601.) Defendant fails to establish any abuse of
discretion in the admission of Camacho’s lay opinion identification testimony.
Defendant argues the admission of Detective Camacho’s testimony violated his
constitutional rights. We disagree. “Application of the ordinary rules of evidence
generally does not impermissibly infringe on a . . . defendant’s constitutional rights.”
(People v. Kraft (2000) 23 Cal.4th 978, 1035.) Defendant fails to show that this case
warrants any departure from the general rule. (Id. at p. 1036.) As explained, the trial
court properly admitted Camacho’s testimony. “Because the trial court’s ruling was not
an abuse of discretion . . . defendant’s constitutional claim also fails.” (People v.
Miranda (2011) 199 Cal.App.4th 1403, 1426.)
B. Firearms Comparison Testimony
Defendant next argues the trial court erred in admitting Currier’s expert opinion
testimony that the cartridge casing recovered from the scene was fired from the gun
found in his waistband. He argues the trial court should have excluded Currier’s
testimony or conducted a Kelly hearing on firearms comparison evidence.6 He also
argues the trial court abused its discretion by failing to act as a “gatekeeper” as required
by Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747(Sargon). We reject these contentions.
1. Additional Background
Before trial, defendant moved in limine to exclude firearm comparison evidence,
or alternatively, to require a Kelly hearing to determine the admissibility of such
evidence. The motion relied on an excerpt from a report compiled by the President’s
6 People v. Kelly (1976) 17 Cal.3d 24 (Kelly).
11
Council of Advisors on Science and Technology. (President’s Council of Advisors on
Science and Technology, Report to the President, Forensic Science in Criminal Courts:
Ensuring Validity of Feature-Comparison Methods (Sept. 2016) (PCAST report).) The
PCAST report raises concerns about the foundational validity of firearm and toolmark
comparison analysis. It criticizes firearm comparison methods as “subjective,” and
characterizes the criteria for making an identification as “circular.” (Id. at p. 104.) The
PCAST report calls for “multiple independent black box studies” to provide estimates of
reliability and notes that only one such study had been conducted at the time of
publication. (Id. at pp. 106, 111.) The PCAST report makes no recommendation as to
the admissibility of firearms comparison evidence in criminal proceedings but leaves that
decision to trial courts. (Id. at p. 112 [“Whether firearms analysis should be deemed
admissible based on current evidence is a decision that belongs to the courts”].)
Defendant’s motion acknowledged that firearms comparison evidence has
traditionally been deemed admissible (see, e.g., People v. Cowan (2010) 50 Cal.4th 401,
470 (Cowan)), but argued “the relevant scientific community no longer accepts the
scientific validity of firearm identifications which purport to demonstrate a match of an
unknown casing or bullet to a specific firearm to the exclusion of all others.” The motion
also argued the firearms comparison testimony was inadmissible under Sargon because
there was “too great an analytical gap” between Currier’s data and proffered opinion.
The motion sought to exclude Currier’s testimony entirely or, in the alternative, preclude
her from presenting her opinions in terms suggesting absolute certainty.
The prosecution opposed the motion. The prosecution argued that concerns about
the reliability of firearms comparison evidence should be addressed through cross-
examination, rather than exclusion. The prosecution additionally argued that Kelly does
not apply to firearms comparison evidence, which jurors can easily evaluate for
themselves.
12
The trial court heard argument and denied the motion. The trial court observed
that “fair and impartial analysis and comparison evidence has been regularly admitted in
criminal trials through expert testimony, and toolmark identification evidence has been
admitted in California for over 60 years.” (See People v. Godlewski (1943) 22 Cal.2d
677, 684-685.) The trial court concluded that firearms comparisons are not subject to
Kelly, as the technique is not new, and jurors can see and evaluate the comparisons for
themselves.
The trial court then turned to the PCAST report. The trial court indicated that the
court had both read the PCAST report and conducted its own research. The trial court
observed that the PCAST report was “not the only opinion on the scientific validity of
firearm identification analysis,” adding that the report’s conclusions had been “quickly
and publicly rejected” by former U.S. Attorney General Loretta Lynch and the Federal
Bureau of Investigations and refuted by the Association of Firearm and Toolmark
Examiners. The trial court also observed that the PCAST report “was itself not a peer-
reviewed work.” Under the circumstances, the trial court concluded that the PCAST
report could not be considered dispositive and should not foreclose expert opinion
testimony on firearms comparisons.
The trial court then considered defendant’s Sargon argument. The trial court
rejected defendant’s contention that the PCAST report constituted an independent basis
for categorically excluding Currier’s testimony. The trial court continued: “At this
juncture, based on the pleadings I have before me, I have no basis to assess whether the
anticipated forensic ballistic expert’s opinions are founded on matter, procedures,
materials or deductions that are so lacking in value as to render them excludable under
Sargon.” Defense counsel argued, based on evidence presented at the preliminary
hearing, that Currier intended to testify that she had a “zero error rate” and had “never
made a false positive.” The prosecutor responded that Currier had previously testified
only that she passed all of her proficiency tests. The prosecutor assured the trial court
13
that Currier did not intend to testify that she had a “zero error rate.” The trial court
denied defendant’s motion, noting that any testimony that Currier or the crime lab had
never made a mistake would be fodder for cross-examination.
2. Kelly Hearing
Defendant argues the trial court should have conducted a Kelly hearing before
admitting the prosecution’s firearms comparison evidence. He acknowledges that
firearms comparison evidence “has long been admitted in California courts and courts
throughout the country,” but asserts the PCAST report raises so much doubt regarding the
reliability of such evidence that it can no longer be said to be generally accepted within
the relevant scientific community. We cannot agree.
The trial court has broad discretion in deciding whether to admit or exclude expert
testimony. (People v. Jones (2013) 57 Cal.4th 899, 946.) “ ‘Under Kelly, the proponent
of evidence derived from a new scientific technique must establish that (1) the reliability
of the new technique has gained general acceptance in the relevant scientific community,
(2) the expert testifying to that effect is qualified to give an opinion on the subject, and
(3) the correct scientific procedures were used.’ ” (Id. at p. 936.) “The purpose of these
threshold requirements—commonly referred to as the Kelly test—is to protect against the
risk of credulous juries attributing to evidence cloaked in scientific terminology an aura
of infallibility.” (People v. Peterson (2020) 10 Cal.5th 409, 444.)
“Not every subject of expert testimony needs to satisfy the Kelly test. Courts
determining whether Kelly applies must consider, first, whether the technique at issue is
novel, because Kelly ‘ “only applies to that limited class of expert testimony which is
based, in whole or part, on a technique, process, or theory which is new to science and,
even more so, the law.” ’ [Citation.] Second, courts should consider whether the
technique is one whose reliability would be difficult for laypersons to evaluate. A ‘Kelly
hearing may be warranted when “the unproven technique or procedure appears in both
name and description to provide some definitive truth which the expert need only
14
accurately recognize and relay to the jury.” ’ [Citation.] Conversely, no Kelly hearing is
needed when ‘[j]urors are capable of understanding and evaluating’ the reliability of
expert testimony based in whole or in part on the novel technique.” (People v. Peterson,
supra, 10 Cal.5th at p. 444.)
We are inclined to agree with the trial court that the firearm comparison
techniques here are not subject to Kelly, as they are neither new to science or the law, nor
so foreign to everyday experience that jurors would have unusual difficulty evaluating
them. (People v. Azcona (2020) 58 Cal.App.5th 504, 511 (Azcona)[questioning whether
firearm comparisons are subject to Kelly, and noting that “visual comparison of marks on
physical objects is not so foreign to everyday experience that jurors would have unusual
difficulty evaluating it”]; see also Cowan, supra, 50 Cal.4th at p. 470 [ballistics
comparisons and toolmark identification through the use of molds were not new
techniques, but rather, a combination of existing techniques, which were not beyond
common understanding and not subject to Kelly]; see also People v. Venegas (1998) 18
Cal.4th 47, 81 [contrasting DNA evidence, which requires validation under Kelly, with
other types of analysis based on observations that jurors essentially can see for
themselves].) We need not decide this question, however, as we would conclude the
expert testimony was admissible, even assuming Kelly applies.
As indicated ante, defendant acknowledges that firearms comparison techniques
have previously been deemed admissible in California courts. (See Cowan, supra, 50
Cal.4th at p. 470.) Defendant does not dispute that firearms comparison techniques have
been generally accepted as reliable in the past (though no published opinion so holds),
but argues they are no longer so accepted. (Azcona, supra, 58 Cal.App.5th at p. 511, fn.
1.) We accept defendant’s apparent concession and assume for purposes of analysis that
firearms comparison evidence has traditionally been accepted as generally reliable.
(Ibid.)
15
“When the continuing admissibility of scientific evidence is at issue, rather than it
being the proponent’s burden to show the technique is generally accepted by the
scientific community, the burden shifts to the opposing party to produce new evidence
showing it no longer is.” (Azcona, supra, 58 Cal.App.5th at p. 511.) To carry this
burden, the opposing party must show that “a clear majority of the relevant scientific
community no longer accepts the method as reliable.” (Id. at p. 512.) “Appellate review
of a trial court’s determination regarding a scientific technique’s general acceptance is de
novo.” (Id. at p. 511.)
Applying these standards, and exercising our independent judgment, we conclude
defendant has failed to carry his burden. Defendant offered compelling evidence that a
credible body found cause for concern about firearms comparison testimony. The
PCAST report casts doubt on the reliability of firearms comparison techniques and
undermines confidence in Currier’s conclusion that the cartridge casing recovered from
the scene was fired from the gun found on defendant. But the PCAST report “falls short
of establishing that a ‘clear majority’ of the relevant scientific community no longer
accepts firearm toolmark comparison as reliable.” (Azcona, supra, 58 Cal.App.5th at p.
512.) The PCAST report, though undeniably credible and concerning, does not, alone,
define the relevant scientific community, much less demonstrate that a clear majority of
that community now rejects firearms comparison evidence as unreliable.7 (Id. at pp. 512-
513 [“Criticism of the method from credible sources surely affects the persuasive value
of the evidence, but it does not equate to what defendant needed to show to render the
firearms expert’s testimony inadmissible: that the method is no longer accepted by a clear
7 We note here that the PCAST report was concerned with the absence of black-box
studies demonstrating the error rate for firearms comparison techniques, but such studies
appear to have been completed since the report’s publication some five years ago. (See
United States v. Harris (D.D.C. 2020) 502 F.Supp.3d 28, 39 [noting that recent black-box
studies “have resolved some of the concerns raised by the PCAST report”].)
16
majority of the relevant scientific community”].) On the record before us, we conclude
that defendant has failed to show that firearms comparison testimony is categorically
inadmissible under Kelly.
3. Sargon
Defendant next argues the trial court failed to perform its gatekeeping function
under Sargon, supra. He argues, again, that firearms comparison techniques are
unreliable and suggests the trial court had an independent duty under Sargon to determine
the reliability of such techniques using the criteria set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) 509 U.S. 579 (Daubert). Again, we disagree.
“Trial judges have a critical gatekeeping function when it comes to expert
testimony beyond merely determining whether the expert may testify at all.” (Azcona,
supra, 58 Cal.App.5th at p. 513.) Expert evidence that does not require a Kelly analysis
must still be admissible under Evidence Code sections 801, subdivision (b), and 802,
which require that the trial court act as a gatekeeper to exclude expert opinion testimony
“that is (1) based on matter of a type on which an expert may not reasonably rely, (2)
based on reasons unsupported by the material on which the expert relies, or (3)
speculative.” (Sargon, supra, 55 Cal.4th at pp. 771-772.)
“The trial court’s preliminary determination whether the expert opinion is founded
on sound logic is not a decision on its persuasiveness. The court must not weigh an
opinion’s probative value or substitute its own opinion for the expert’s opinion. Rather,
the court must simply determine whether the matter relied on can provide a reasonable
basis for the opinion or whether that opinion is based on a leap of logic or conjecture.
The court does not resolve scientific controversies. Rather, it conducts a ‘circumscribed
inquiry’ to ‘determine whether, as a matter of logic, the studies and other information
cited by experts adequately support the conclusion that the expert’s general theory or
technique is valid.’ [Citation.] The goal of trial court gatekeeping is simply to exclude
‘clearly invalid and unreliable’ expert opinion. [Citation.] In short, the gatekeeper’s role
17
‘is to make certain that an expert, whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.’ ” (Sargon, supra, 55 Cal.4th
at p. 772.) We review the trial court’s decision regarding the permissible scope of expert
opinion testimony for abuse of discretion. (Id. at p. 771.)
Defendant argued in the trial court that Currier’s expert opinion testimony should
be excluded or limited because there was “too great an analytical gap” between the
toolmark evidence and Currier’s opinion that the cartridge casing recovered from the
scene was fired from the gun found on defendant. (Sargon, supra, 55 Cal.4th at p. 771
[explaining that a trial court performing its gatekeeping function “ ‘may conclude that
there is simply too great an analytical gap between the data and the opinion
proffered’ ”].) This argument was based, it seems, on trial counsel’s expectation that
Currier would testify to an “infallible” conclusion that the cartridge casing was fired from
defendant’s gun, to the exclusion of any other gun. But Currier was not asked to
characterize or quantify the degree of certainty with which she held her opinion at trial,
and defendant does not renew his “analytical gap” argument on appeal. Instead, he
argues the trial court abdicated a gatekeeping duty to determine the reliability of firearms
comparison evidence using the criteria set forth in Daubert.8 Defendant’s argument
assumes that Sargon requires that trial courts apply the federal Daubert standard in
considering the admissibility of scientific evidence. That assumption is incorrect.
8 In Daubert, the U.S. Supreme Court identified four factors that may assist a trial court
in determining the admissibility of an expert’s testimony: (1) whether the theory or
technique can be and has been tested; (2) whether the technique has been subject to peer
review and publication; (3) the technique’s known or potential rate of error; and (4) the
level of the theory or technique’s acceptance within the relevant discipline. (Daubert,
supra, 509 U.S. at pp. 593-594.) These factors are not definitive or exhaustive and may
not apply in every case. (Kumho Tire Co., Ltd. v. Carmichael (1999) 526 U.S. 137, 151;
Kannankeril v. Terminix Intern., Inc. (3rd Cir. 1997) 128 F.3d 802, 806-807.)
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The admissibility standards for novel scientific evidence under Kelly and Daubert
are different. “Under the Kelly test, the admissibility of evidence obtained by use of a
scientific technique does not depend upon proof to the satisfaction of a court that the
technique is scientifically reliable or valid. [Citation.] Because courts are ill-suited to
make such determinations, admissibility depends upon whether the technique is generally
accepted as reliable in the relevant scientific community.” (People v. Bolden (2002) 29
Cal.4th 515, 546.) Under Daubert, by contrast, the federal courts “conduct a broader
inquiry which allows the court to exercise its own judgment about whether the technique
used is reliable.” (Azcona, supra, 58 Cal.App.5th at pp. 510-511; see also Daubert,
supra, 509 U.S. at p. 597 [explaining that Federal Rules of Evidence (28 U.S.C.), rule
702 imposes a gatekeeping duty on the trial judge to ensure that an expert’s testimony
“both rests on a reliable foundation and is relevant to the task at hand”].)
Defendant suggests that Sargon’s gatekeeping principles require the trial court to
independently evaluate novel scientific evidence under the federal Daubert standard. Our
Supreme Court has considered—and rejected—a similar argument in People v. Lucas
(2014) 60 Cal.4th 153 (Lucas). There, the defendant challenged the admissibility of
several types of blood evidence, arguing, inter alia, that GM and KM antibody genetic
testing techniques are not generally accepted as reliable in the relevant scientific
community. (Id. at p. 244.) Our Supreme Court rejected the defendant’s first-prong
Kelly challenge, noting that the United States Supreme Court and several courts of appeal
had recently upheld the admissibility of evidence obtained by use of the same techniques.
(Ibid.) In a footnote, the Lucas court observed: “Defendant also attacks the first prong of
Kelly itself, claiming that this aspect of our analysis violates federal due process by
undermining the trial court’s gatekeeping function and barring relevant evidence at the
pretrial stage Essentially, defendant argues that the first prong of Kelly improperly relies
upon what the scientific community accepts as to the reliability of a technique, thereby
supplanting the trial court’s independent determination of reliability as required by
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[Daubert]. But we have previously rejected such claims, and defendant offers no
persuasive reason for reconsideration of our conclusion. [Citation.] In addition, our
opinion in [Sargon], did not, by using the term ‘gatekeeper,’ indicate any move away
from the Kelly test toward the federal Daubert standard.” (Lucas, supra, 60 Cal.4th at p.
245, fn. 36.)
Likewise, in the present case, defendant’s Sargon argument amounts to an
invitation to abandon the Kelly test in favor of the federal Daubert standard. This we
cannot do. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The
trial court surveyed a wide range of scientific perspectives and reasonably found that
firearms comparison evidence continues to be generally accepted in the relevant scientific
community.9 The trial court had no obligation under Sargon to independently evaluate
the reliability of firearms comparison evidence under the federal Daubert standard.
(Lucas, supra, 60 Cal.4th at p. 245, fn. 36.) We reject the claim of error.
C. CALCRIM No. 548
As indicated above, the prosecution argued defendant was guilty of first degree
murder on two alternative theories: murder by premeditation and deliberation and felony
murder. Defendant argues the trial court erroneously instructed the jury with CALCRIM
No. 548, which told jurors they needed to unanimously agree on the crime, but not the
theory of the crime. (CALCRIM No. 548 (Sept. 2019 rev.) [“You may not find the
defendant guilty of murder unless all of you agree that the People have proved that the
defendant committed murder under at least one of these theories. You do not all need to
9 The trial court also surveyed federal cases addressing firearms comparison evidence,
and defendant refers us to several such cases in his opening brief. As the trial court
observed, however, these authorities are not binding on us. They are also of limited
utility given the differences in federal and state law described in the text. (Azcona, supra,
58 Cal.App.5th at p. 511 [“As a result of the difference in state versus federal approaches,
the federal authorities cited by defendant are of limited value here because they focus on
directly examining the reliability of toolmark comparison methods”].)
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agree on the same theory, but you must unanimously agree whether the murder is in the
first or second degree”].) Relying on the U.S. Supreme Court’s recent opinion in Ramos
v. Louisiana (2020) __ U.S. __, [140 S.Ct. 1390] (Ramos), defendant argues CALCRIM
No. 548, though previously viewed as a correct statement of law, must now be seen as
having violated his constitutional right to a unanimous verdict. We disagree.
California has long recognized that a criminal defendant has a constitutional right
to a unanimous verdict that he or she is guilty of a specific crime. (People v. Russo
(2001) 25 Cal.4th 1124, 1131.) “But the jury need not unanimously agree on subsidiary
factual issues, such as specific details of the act.” (People v. McDaniel (2021) 12 Cal.5th
97, 145.) “[W]here the evidence shows only a single discrete crime but leaves room for
disagreement as to how exactly that crime was committed or what the defendant’s precise
role was, the jury need not unanimously agree on the basis or . . . the ‘theory’ whereby
the defendant is guilty.” (People v. Russo, supra, at p. 1132.) CALCRIM No. 548
accurately states the law on these points.
Defendant argues CALCRIM No. 548 can no longer be considered a correct
statement of the law after Ramos. Ramos held that the federal Constitution mandates that
jury verdicts in criminal cases be unanimous, but California has long required that.
(Ramos, supra, 140 S.Ct. at p. 1397; People v. Russo, supra, 25 Cal.4th at p. 1132 [“In a
criminal case, a jury verdict must be unanimous”].) “Given California’s existing
requirement of a unanimous verdict, the Supreme Court’s decision [in Ramos] has no
direct effect on California.” (People v. Wilson (2020) 56 Cal.App.5th 128, 161, fn. 17.)
Nothing in Ramos supports defendant’s argument—which our own Supreme Court has
“repeatedly rejected”—that the jury must unanimously agree on a theory of first-degree
murder before returning a guilty verdict for that crime. (People v. Mora and Rangel
(2018) 5 Cal.5th 442, 496.) We therefore reject the claim of instructional error.
But even assuming arguendo that Ramos upended California law, such that
CALCRIM No. 548 can no longer be considered valid, we would still conclude that
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reversal is not warranted. As noted, the jury found defendant guilty of first degree
murder. The jury also found true the special circumstance that he murdered Doretha
during the commission of an attempted robbery, and personally and intentionally
discharged a firearm causing great bodily injury or death to Doretha. (§ 12022.53, subd.
(d).) The jury’s true findings establish that jurors unanimously agreed that defendant was
the shooter and was guilty of first degree murder on a felony murder theory. We
therefore conclude that any error in the trial court’s instruction with CALCRIM No. 548
was harmless beyond a reasonable doubt. (People v. Moore (2011) 51 Cal.4th 386, 412
[instructional error as to unanimity on degree of murder held harmless in light of true
special circumstance findings: “The lesser offenses of second degree murder and
manslaughter were not legally available verdicts if defendant killed [the victim] in the
commission of burglary and robbery, as the jury unanimously determined he had”].)
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
ROBIE, J.
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