People v. Garcia ( 2018 )

Filed 11/1/18; Opinion following rehearing
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E068490
v. (Super.Ct.No. FVI1501152)
RICHARD GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed with directions.
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.
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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
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Defendant’s 14-year sentence consists of the middle term of four years for the
burglary, doubled to eight years based on the prior strike conviction, plus five years for
the prior serious felony conviction, plus one year for the prison prior.
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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
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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
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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,
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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
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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
(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
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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 testimony is admissible on subjects that are “sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact.” (Evid.
Code, § 801, subd. (a); People v. Chavez (2018) 22 Cal.App.5th 663, 680.) In particular,
expert testimony concerning the reliability of eyewitness identification evidence is
admissible to “inform[] the jury of certain factors that may affect such an identification in
a typical case . . . .” (McDonald, supra, 37 Cal.3d at pp. 370.)
The psychological factors and other circumstances that may affect an eyewitness
identification are numerous and are listed in CALCRIM No. 315, which was given in this
case. These factors include whether the witness knew or had previous contact with the
person the witness identified, how well the witness could see the person, whether the
witness was under stress when the witness observed the person, whether the witness was
asked to pick the person out of a group or from a photographic or physical lineup, how
certain the witness was when the witness identified the person, whether the witness and
person were of different races, and whether there were any other circumstances that
affected the witness’s ability to make an accurate identification of the person.
(CALCRIM No. 315.)
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A trial court has discretion to exclude otherwise relevant evidence if its probative
value is substantially outweighed by the probability its admission will consume undue
time, mislead the jury, or confuse the issues. (Evid. Code, § 352; People v. Scott (2011)
52 Cal. 4th 452, 490.) Although a defendant has a “‘general [constitutional] right”’ to
offer a defense through the testimony of his or her witnesses, a state court’s exclusion of
defense evidence under ordinary rules of evidence—including Evidence Code section
352—generally does not infringe upon this right. (People v. Chavez, supra, 22
Cal.App.5th at p. 681; People v. Cornwell (2005) 37 Cal. 4th 50, 82.)
In McDonald, the leading California case concerning expert testimony on
eyewitness identifications (People v. Jones (2003) 30 Cal. 4th 1084, 1111), our state high
court said: “[T]he decision to admit or exclude expert testimony on psychological factors
affecting eyewitness identification remains primarily a matter within the trial court’s
discretion; . . . ‘we do not intend to “open the gates” to a flood of expert evidence on the
subject.’ [Citation.] We expect that such evidence will not often be needed, and in the
usual case the appellate court will continue to defer to the trial court’s discretion in this
matter. Yet deference is not abdication. When an eyewitness identification of the
defendant is a key element of the prosecution’s case but is not substantially corroborated
by evidence giving it independent reliability, and the defendant offers qualified expert
testimony on specific psychological factors shown by the record that could have affected
the accuracy of the identification but are not likely to be fully known to or understood by
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the jury, it will ordinarily be error to exclude that testimony.” (McDonald, supra, 37
Cal.3d at p. 377, italics added.)
Under McDonald, we review a trial court’s ruling on the admissibility of expert
testimony on the psychological factors affecting eyewitness identifications for an abuse
of discretion. (McDonald, supra, 37 Cal.3d at p. 370.) The exclusion of such expert
testimony “is justified only if there is other evidence that substantially corroborates the
eyewitness identification and gives it independent reliability.” (People v. Jones, supra,
30 Cal.4th at p. 1112; People v. Gonzales and Soliz (2011) 52 Cal. 4th 254, 290-291
[“McDonald does not apply when an eyewitness identification is ‘substantially
corroborated by evidence giving it independent reliability.’”].)
In determining whether other evidence substantially corroborates an eyewitness
identification and gives it independent reliability, “the court looks to the body of evidence
that corroborates the eyewitness identification, i.e., whether there is substantial evidence
tending to show that the eyewitness identification is itself reliable, in order to assess the
probative value of the expert witness testimony. If there is substantial evidence showing
that the eyewitness testimony is reliable, the trial court may conclude that the probative
value of the expert testimony would not outweigh any prejudicial effect caused by
potential confusion of the issues and/or the amount of time that would be consumed by
such testimony.” (People v. Goodwillie (2007) 147 Cal. App. 4th 695, 729-730.)
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Here, the court did not abuse its discretion in excluding Dr. Shomer’s expert
testimony. As the court recognized, ample other evidence substantially corroborated
Knowles’s identification of defendant, giving it independent reliability and substantially
reducing the probative value of Dr. Shomer’s testimony. Thus, the court reasonably
concluded that the probative value of Dr. Shomer’s testimony was substantially
outweighed by the probability its admission would consume undue court time. (Evid.
Code, § 352; People v. Goodwillie, supra, 147 Cal.App.4th at pp. 729-730.)
First, other evidence showed that the “black vehicle” that Knowles saw leaving the
scene of the burglary was defendant’s vehicle. Knowles was able to read the vehicle’s
license number, and Department of Motor Vehicle records showed that the vehicle, a
black Chevrolet Blazer, was registered to defendant. Second, a year after the burglary,
Knowles accurately identified Kemp from a six-pack photographic lineup as the second
man he saw getting into defendant’s vehicle after the burglary.
Third, Watkins testified that Kemp and defendant were good friends, and Watkins
felt threatened when another friend of defendant’s contacted Watkins and asked whether
Watkins would be coming to court. Fourth, Kemp pled guilty to the burglary and
admitted his involvement at trial. Kemp’s ankle monitor placed him at Clark’s home at
the time of the burglary and at defendant’s home shortly after the burglary.
Fifth, defendant’s jail calls showed he was concerned that fingerprints taken from
Clark’s home might match his fingerprints and provide the prosecution with evidence that
he committed the burglary. Sixth, defendant’s jail calls also showed he was trying to “set
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up” an alibi defense, by having several witnesses, including Kemp, say he had “nothing
to do with” the burglary and was not at Clark’s house at the time of the burglary.
Defendant has also not shown that the exclusion of Dr. Shomer’s testimony
violated his due process right to present defense evidence. Because ample evidence
independently corroborated Knowles’s identification, Dr. Shomer’s testimony was not so
vital to the defense that due process principles required its admission. (People v.
Goodwillie, supra, 147 Cal.App.4th at p. 725; People v. Cornwell, supra, 37 Cal.4th at p.
82.) The exclusion of Dr. Shomer’s testimony did not prevent defendant from arguing
that Knowles’s identification was unreliable. Knowles and Detective Libby both testified
that Knowles was “hesitant” and “uncertain” in his eyewitness identification of
defendant. In addition, the jury was instructed pursuant to CALCRIM No. 315 on the
many factors that may affect the credibility of eyewitness testimony. As the trial court
emphasized, there was nothing about the reliability of Knowles’s identification that a jury
could not understand, or that warranted expert testimony.
Lastly, any error in excluding Dr. Shomer’s expert testimony was harmless.
(People v. Watson (1956) 46 Cal. 2d 818, 836.) We discern no reasonable probability that
defendant would have realized a more favorable result if Dr. Shomer’s testimony had
been admitted, given that other evidence substantially corroborated Knowles’s
identification of defendant and the jury was instructed pursuant to CALCRIM No. 315 on
the factors that may affect the credibility of an eyewitness identification.
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C. Remand for Resentencing
On September 30, 2018, the Governor signed S.B. 1393 which, effective January
1, 2019, amends sections 667(a) and 1385(b) to allow a court to exercise its discretion to
strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018,
ch. 1013, §§ 1-2.) Under the current versions of these statutes, the court is required to
impose a five-year consecutive term for “any person convicted of a serious felony who
previously has been convicted of a serious felony” (§ 667(a)), and the court has no
discretion “to strike any prior conviction of a serious felony for purposes of enhancement
of a sentence under Section 667.” (§ 1385(b).)
After our original opinion in this case was filed on October 3, 2018, defendant
petitioned for rehearing claiming that, in light of S.B. 1393, the matter must be remanded
for resentencing so the trial court may exercise its discretion to dismiss or strike the five-
year consecutive term that was imposed based on his prior serious felony conviction.
(§ 667(a).) We granted defendant’s petition for rehearing. We have modified our
original opinion to add this section and to remand the matter for resentencing pursuant to
S.B. 1393 after January 1, 2019, the date S.B. 1393 becomes effective.
Defendant claims S.B. 1393 applies retroactively to all cases or judgments of
conviction in which a five-year term was imposed at sentencing, based on a prior serious
felony conviction, provided the judgment of conviction is not final when S.B. 1393
becomes effective on January 1, 2019. We agree.
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When an amendatory statute either lessens the punishment for a crime or, as S.B.
1393 does, “‘vests in the trial court discretion to impose either the same penalty as under
the former law or a lesser penalty,’” it is reasonable for courts to infer, absent evidence to
the contrary and as a matter of statutory construction, that the Legislature intended the
amendatory statute to retroactively apply to the fullest extent constitutionally
permissible—that is, to all cases not final when the statute becomes effective. (People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308 & fn. 5; People v. Francis (1969)
71 Cal.2d. 66, 76) [“[T]here is such an inference because the Legislature has determined
that the former penalty provisions may have been too severe in some cases and that the
sentencing judge should be given wider latitude in tailoring the sentence to fit the
particular circumstances.”]; In re Estrada (1965) 63 Cal. 2d 740, 744-745 [absent
evidence of contrary legislative intent, “it is an inevitable inference” that the Legislature
intends ameliorative criminal statutes to apply to all cases not final when the statutes
become effective]; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507
[“Retrospective application of a new penal statute is an exception to the general rule set
forth in section 3, which bars retroactive application of new Penal Code statutes unless
the Legislature has expressly provided for such application.”].)
In enacting S.B. 1393, the Legislature did not expressly declare that S.B. 1393, or
the amendments it makes to sections 667(a) and 1385(b), will apply retroactively to all
judgments of conviction which are not final on January 1, 2019, when S.B. 1393’s
amendments to sections 667 and 1385 go into effect. (People v. Arredondo, supra, 21
14
Cal.App.5th at pp. 509-512 (conc. opn. of Benke, J.) [“When . . . a criminal defendant
argues he or she is entitled to the benefit of new legislation, we must begin with the . . .
presumption, expressly set forth in section 3, that unless there is express language to the
contrary, statutes are prospective only.”].) But the Legislature also did not expressly
declare or in any way indicate that it did not intend S.B. 1393 to apply retroactively, and
S.B. 1393 is ameliorative legislation which vests trial courts with discretion, which they
formerly did not have, to dismiss or strike a prior serious felony conviction for sentencing
purposes. (Stats. 2018, ch. 1013, §§ 1-2.)
Thus, under the Estrada rule, as applied in Lara and Francis, it is appropriate to
infer, as a matter of statutory construction, that the Legislature intended S.B. 1393 to
apply to all cases to which it could constitutionally be applied, that is, to all cases not yet
final when S.B. 1393 becomes effective on January 1, 2019. (People v. Superior Court
(Lara), supra, 4 Cal.5th at pp. 307-308 & fn. 5; In re Estrada, supra, 63 Cal.2d at pp.
744-745 [“If the amendatory statute lessening punishment becomes effective prior to the
date the judgment of conviction becomes final then, in our opinion, it, and not the old
statute in effect when the prohibited act was committed, applies.”]; People v. Conley
(2016) 63 Cal. 4th 646, 657 [“The Estrada rule rests on an inference that, in the absence
of contrary indications, a legislative body ordinarily intends for ameliorative changes to
the criminal law to extend as broadly as possible, distinguishing only as necessary
between sentences that are final and sentences that are not.”].)
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The People concede that if defendant’s judgment of conviction is not final on
January 1, 2019, then S.B. 1393 will apply retroactively to defendant’s judgment. They
argue, however, that defendant’s judgment “should be final” by January 1, 2019, and in
any event, defendant’s S.B. 1393 claim is not “ripe for adjudication” or justiciable, and
should be left for a future forum, because his judgment “should” be final by January 1,
2019. (People v. Ybarra (1988) 206 Cal. App. 3d 546, 550 [matters not ripe for
adjudication should ordinarily be left to a future forum].)
We believe it is highly unlikely that defendant’s judgment will be final by January
1, 2019, because he would have to exhaust all of his appeal rights by that date, even if we
did not remand the matter for resentencing after January 1, 2019, pursuant to S.B. 1393.
“‘[F]or the purpose of determining the retroactive application of an amendment to a
criminal statute, a judgment is not final until the time for petitioning for a writ of
certiorari in the United States Supreme Court has passed.’” (People v. Vieira (2005) 35
Cal. 4th 264, 305-306.) Because it is highly unlikely that defendant’s judgment will in
any event be final by January 1, 2019, we remand the matter to the trial court for
rensentencing pursuant to S.B. 1393, after January 1, 2019.3
3 Remand for resentencing will not be futile. The record does not indicate that the
court would not have dismissed or stricken defendant’s prior serious felony conviction
for sentencing purposes, had the court had the discretion to do so at the time it originally
sentenced defendant. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
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IV. DISPOSITION
The matter is remanded to the trial court with directions to resentence defendant
after January 1, 2019, pursuant to sections 667(a) and 1385(b), as amended by S.B. 1393
effective January 1, 2019. In all other respects, the judgment is affirmed.
CERTIFIED FOR PUBLICATION
FIELDS
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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