People v. Smith CA2/8 ( 2020 )

Filed 11/9/20 P. v. Smith CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B299441
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA468662)
v.
CARLOS SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mildred Escobedo, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________________
INTRODUCTION
A jury convicted Carlos Smith of first degree murder and
found true the firearm allegations. He was sentenced to 25 years
to life for the murder plus a consecutive term of 25 years to life
for the firearm enhancement under Penal Code section 12022.53,
subdivision (d). We affirm.
Smith contends the trial court erred by not conducting a
Kelly/Frye hearing on the technique of ballistic comparisons
because the relevant scientific community no longer accepts its
validity.1 However, our high court has held that ballistics
comparisons are not subject to Kelly validation because the
technique is not new and jurors can see and evaluate the
comparisons for themselves. (People v. Cowan (2010) 50 Cal.4th
401, 470; People v. Venegas (1998) 18 Cal.4th 47, 81.) Whether
that should be revisited in light of some current literature
criticizing the validity of the technique, and several federal cases
decided under Daubert v. Merrell Dow Pharmaceuticals, Inc.
(1993) 509 U.S. 579 (Daubert) that have constrained how an
expert may testify about such evidence, was not properly raised
and the trial court correctly denied it.
We also conclude the trial court did not abuse its discretion
in overruling certain evidentiary objections and by refusing to
excuse a juror who quietly cried while the jury was shown
autopsy photographs. Smith did not object to the fines, fees, and
assessments imposed at sentencing and therefore his claim on
that ground was forfeited.
1 The two cases are People v. Kelly (1976) 17 Cal.3d 24 and
Frye v. United States (D.C. Cir. 1923) 293 F. 1013. It is now
known as a Kelly hearing.
2
FACTS
We limit recitation of facts to those relevant to the issues
raised on appeal. On May 28, 2018, near 35th and Normandie in
Los Angeles, George McClaren was shot once in the back and
died at the scene. Found about 90 feet away from the body was
an expended .40 caliber shell casing.
A few days later, pursuant to a search warrant, the police
found a .40 caliber Glock semiautomatic handgun in a closet in
Smith’s apartment. The rounds in the magazine were the same
brand and caliber as the expended shell casing. Based on
ballistics comparisons, a criminalist with the Los Angeles Police
Department concluded that the handgun found in Smith’s
apartment was the handgun that fired the shell casing found at
the scene of the killing.
Smith testified in his own defense. He admitted he was
there, had a loaded firearm in his hand, and tried to fire it in the
direction of where he heard two shots come from. But he was
trying to fire at another man who earlier had threatened him
with what he thought was a gun. This other man had accused
him of stealing a bike and said he would “put a bullet in [his]
ass.” But Smith said his gun never fired because it jammed.
DISCUSSION
I People v. Kelly and Ballistics Comparison Tests
Smith filed an in limine motion to exclude all “firearms
comparison evidence.” The motion argued the trial court was
required to hold a Kelly/Frye hearing as to (a) whether firearms
comparison tests were generally accepted as reliable within the
relevant scientific community, and (b) even if firearms
comparison tests had been considered reliable in the past,
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whether the relevant scientific community still considered them
reliable. The court denied the motion without an evidentiary
hearing.
Ballistics comparison tests, also referred to as firearms
comparison tests, are not subject to Kelly. (People v. Cowan,
supra, 50 Cal.4th at p. 470; People v. Venegas, supra, 18 Cal.4th
at p. 81.) They are not new to science and the law; indeed, they
have been admitted into evidence in courts in California for
years. Further, they do not invoke the concerns the Kelly line of
cases is designed to protect the jury against because the results
are not, as Cowan emphasizes, unduly difficult for jurors to
evaluate. The motion cited People v. McDonald (1984) 37 Cal.3d
351, People v. Bledsoe (1984) 36 Cal.3d 236, and Sinaiko v.
Superior Court (2004) 122 Cal.App.4th 1133 (incorrectly cited as
People v. Sinaiko) for the proposition that ballistics comparison
tests are subject to Kelly, but none so hold. None even references
those tests.
The motion then argued that current scientific literature
had called the reliability of these comparison tests into doubt. It
cited two reports published before Cowan came down: the 2008
report from National Research Council of the National
Academies, Ballistics Imaging, and the 2009 report from
National Research Council of the National Academies,
Strengthening the Forensic Sciences in the United States: A Path
Forward. It also cited a later 2016 report from the President’s
Council of Advisors on Science and Technology, Report to the
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President, Forensic Science in Criminal Courts: Ensuring
Scientific Validity of Feature-Comparison Methods.2
In a showing of, perhaps, refreshing candor, the trial court
admitted it had not read the motion. Even so, it advised defense
counsel that if the validity of ballistics comparison tests “is now
called into question, then by all means, let’s litigate that. If you
don’t have that and are just making an objection in general, I’m
gonna deny it and go forward.” In response, defense counsel
began discussing the testimony of the criminalist at the
preliminary hearing, and “whether or not the people involved in
this particular case are adequate under the Kelly Frye standard.”
Canned motions are a staple of the legal profession. But
when the trial court asks if counsel is prepared to litigate the
motion and the response is effectively a “no,” then the issue has
not been adequately preserved for review. The burden to show
the comparison tests are no longer considered reliable in the
relevant scientific community rests on Smith. The three reports,
standing alone, are insufficient to satisfy that burden. It would
need to be demonstrated, for example, that the report authors are
part of the relevant scientific community, and their opinions
would need to be subject to testing within a courtroom
2 At trial, the criminalist was cross-examined about many of
the concerns expressed in these reports, including statistical
frequency of similar toolmarks in other Glock 22 firearms and
possible interpretation error rates. She also testified that while a
layperson could see the same marks the criminalist can, “a
person needs training to understand the significance of the marks
seen.” A Kelly hearing, had it been requested, perhaps could
have further explored whether the toolmarks on the bullet
casings were, as Cowan suggests, not unduly difficult for the
layperson to evaluate.
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environment. Even were we willing to wade into the issue with
no evidentiary record, which we are not, Smith has not provided
any case authority, state or federal, that has held (or that even
has suggested) that Kelly applies to ballistics comparison testing,
or that under that standard such evidence should now be found
inadmissible.3
The trial court did not abuse its discretion in denying the
motion.
II Opinion Testimony on Surveillance Video
The police obtained video surveillance footage from the
Circle K across the street and a short distance away from where
the shooting occurred. The video showed, among other things,
Smith walking towards and away from the Circle K, and walking
towards the scene of the crime. It did not show the shooting
itself. Smith argues the court improperly allowed two witnesses,
his girlfriend Cideli Castro and Detective Everardo Amaral, to
testify as to their interpretation as to what was on the video
surveillance recordings. He claims it violated Evidence Code
section 1523, improperly allowed the officer to offer his opinion as
to Smith’s guilt, was outside of Amaral’s expertise, and abridged
his right to a trial by jury. We find the trial court did not abuse
3 To the extent Smith asks us to apply the standards of
Daubert, we decline the invitation. The admissibility standards
under the state Kelly and the federal Daubert lines of cases are
different. California continues to follow Kelly. (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 831, fn. 7; People v.
Leahy (1994) 8 Cal.4th 587, 604.)
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its discretion and, to the extent there may have been error, it was
harmless.4
Smith argues his claim is subject to de novo review because
the admission of improper expert testimony from Detective
Amaral implicated core constitutional rights. This claim of error,
however, only involves the application of Evidence Code section
1523 and is subject to the abuse of discretion standard. (People v.
Goldsmith (2014) 59 Cal.4th 258, 266.) Section 1523 states, with
limited exceptions, that oral testimony is inadmissible to prove
the contents of a writing. A “writing” for purposes of that section
includes video recordings. (Evid. Code, § 250.) Exceptions are
limited to lay opinion identification (People v. Leon (2015)
61 Cal.4th 569, 601; People v. Mixon (1982) 129 Cal.App.3d 118,
128; People v. Perry (1976) 60 Cal.App.3d 608, 612–613) and
matters sufficiently beyond the experience of jurors that call for
expert opinion. (People v. Sloss (1973) 34 Cal.App.3d 74, 86–87
[officer properly allowed to testify photograph showed marijuana
cigarette. (Ibid.)
Smith’s claims on appeal are specific.5 As to his girlfriend,
Castro, he argues she was improperly allowed to testify as to her
interpretation as to how Smith walked to the Circle K and back,
4 Smith made a pre-trial motion to exclude much the same
evidence. The trial court declined to rule in advance, advising
counsel that the objection would need to be raised as evidence
was presented. Objections were made sporadically. Although the
Attorney General argues the issue was not preserved for review,
we disagree.
5 Castro and Amaral were asked other questions that
implicated Evidence Code section 1523, but those statements are
not specifically challenged.
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and how he walked towards the scene of the crime. After
identifying Smith in the video showing him walking towards the
Circle K, she was asked, “Is that how Mr. Smith walks when he’s
good and he’s happy?” She said, “Yes.” On his way back from the
store, Castro was asked if Smith was “walking differently.” She
said, “No.” Then, in the clip showing Smith walking towards the
scene of the crime, she was asked: “Would you agree with me
[the prosecution] it was different than the way he was walking
when he was going north?” She replied, “He looks the same to
me, like—.” The prosecution then pushed: “In the clip that we
just watched, is that the way Mr. Smith walks when he’s a little
bit angry?” She said, “Not really.” She explained that “[h]e’s
always walking like that.”
It could be argued that the prosecution’s questions were a
backdoor attempt to have the witness testify as to what the video
showed. But we need not address that claim because error, if
any, was harmless. The prosecution’s argument was that Smith
walked “differently” to the scene of the crime. Castro testified
Smith always walked that way, and Smith admitted when he
testified in his own defense that he was happy walking to the
Circle K and angry when he went to the scene of the crime.
Moreover, it is highly unlikely given the defense that Smith was
intending to shoot someone else and his gun jammed that this
testimony influenced the jury’s verdict.
As to Detective Amaral, Smith argues the officer was
improperly allowed to testify that the video showed there was a
large bulge in Smith’s pants pocket with a pistol handle showing,
that Smith removed the firearm while he was walking, that he
removed a cellular telephone from his pocket, that he and Castro
interacted, that Castro took something from him, that he put a
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hand over the slide and chambered a round, and that the gun did
not appear to malfunction. The Attorney General argues this
testimony was admissible because it simply helped the jury know
where in the video to look for evidence and evaluate what they
saw.
This evidence breaks down into two discrete categories. As
to the detective’s statement it did not appear from the video that
the gun malfunctioned when Smith chambered a round, that
testimony was admissible as an exception to Evidence Code
section 1523. The detective testified as to his knowledge of guns.
Whether the video shows the gun malfunctioned is sufficiently
beyond the ken of jurors that an expert may testify to that fact.
(Evid. Code, § 801, subd. (a).) As to the other testimony, any
error was harmless. Smith testified in his own defense. He
admitted putting the gun in his waistband, chambering a round,
and pulling the trigger. There is no likelihood the introduction of
the detective’s testimony affirming what Smith expressly
admitted had any impact on the verdict.
III Refusal to Discharge Juror No. 3 Was Proper
It was brought to the court’s attention by defense counsel
that Juror No. 3 had been seen crying during the testimony of the
medical examiner, Lawrence Nguyen. Although the trial judge
had not observed it, the juror was questioned by the court outside
the presence of the other jurors. The court refused to discharge
the juror. Smith complains the trial court failed to inquire of the
juror thoroughly, interrupted the juror’s answers, and failed to
question the other jurors to determine if they were affected by the
crying juror. We find no abuse of discretion.
Defense counsel advised the court as follows: “One quick, I
guess, issue is yesterday during Dr. Nguyen’s testimony, I was
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advised by my intern, who was here for the whole entire trial,
that Jury Number 3 began crying during Dr. Nguyen’s testimony
regarding photographs, mostly about the time in which Mr.
McClaren would be alive. So based upon that, I do have
concerns—I would have concerns for that emotional response,
just as to the doctor’s very clinical testimony, and what type of, I
guess, feelings were being brought up that caused [the juror] to
have an emotional response to what he was saying.” The court
agreed to question whether the juror “can still be fair and
impartial” but would not ask “what the emotions were.” Neither
side objected to that approach.
“[THE COURT]: Juror Number 3, the reason why we have
you in here is because it’s been called to my attention that during
the testimony of Dr. Nguyen, the coroner—Do you remember
that?
“JUROR NUMBER 3: Yes.
“THE COURT: I was informed that you were showing
some emotion or that you cried. Does that sound familiar?
“JUROR NUMBER 3: Yes.
“THE COURT: Did you do that?
“JUROR NUMBER 3: Yes.
“THE COURT: Okay. My question to you is this. Did you
cry because the testimony was of such an amount of something
that caused you to get emotional? Do you understand the
question?
“JUROR NUMBER 3: Um—
“THE COURT: Or better yet, why did you cry?
“JUROR NUMBER 3: I find it difficult to—
“THE COURT: To see things like that? Is that yes?
“JUROR NUMBER 3: Yes.
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“THE COURT: And you’re getting emotional now and
you’re crying now.
“JUROR NUMBER 3: Yes.
“THE COURT: It’s okay. Take a deep breath. Let me ask
you this, Juror Number 3. And you’re human. That’s normal.
We’re just trying to understand what happened. So my question
to you is this. Because it’s a normal human reaction, my next
question is, even though that made you emotional, and even
though you cried and you felt that way, are you still able to hear
this case and be fair and impartial to both sides of the case?
“JUROR NUMBER 3: I believe so, yes.
“THE COURT: Okay. Can you wait until you hear all the
evidence before you even start thinking about what you should be
thinking about in this case?
“JUROR NUMBER 3: Yes. But I still feel like when I see
images—
“THE COURT: Of course. Understood. As anybody would
in certain instances. But the question is, understanding that you
felt that, understanding that it made you emotional, have you
made a decision on this case yet?
“JUROR NUMBER 3: No.
“THE COURT: Okay. And you can wait until the
conclusion of this case when you go to deliberations to do that?
“JUROR NUMBER 3: Yes.
“THE COURT: And you’ll be fair and impartial to both the
defense and the People in this case?
“JUROR NUMBER 3: Yes.”
Defense counsel did not object to the court’s approach but
asserted the juror had an “unjustifiable response to the
photographs that were depicted.” Defense counsel described the
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autopsy photographs as “clinical,” and again expressed concerned
that because of the emotional response and sympathy the juror
could not be impartial. The court disagreed. It found the juror’s
response “appropriate” and “human” and that the juror could be
fair and impartial. The juror was left on the panel.
The last paragraph of Penal Code section 1089 provides
that a juror may be discharged during trial upon good cause
shown if the court finds the juror is “unable to perform his or her
duty.” Whether to discharge a juror is committed to the sound
discretion of the trial court. (People v. Powell (2018) 6 Cal.5th
136, 155.) And deference is given to the trial court’s observations
of the juror’s demeanor. (People v. Lucas (1995) 12 Cal.4th
415, 489; see also People v. Tate (2010) 49 Cal.4th 635, 666.)
Here, the trial court interviewed the juror and concluded that the
juror could remain fair and impartial despite the emotional
response to certain photographs. That conclusion is well
supported by the record.
Smith argues in his brief, however, that this juror’s
“emotional outburst” called into question the juror’s ability to
perform and impacted the ability of the remainder of the jury
panel to serve impartially. This argument badly
mischaracterizes the record. Neither defense counsel nor the
court saw the juror crying in court the day before; it may
therefore be inferred that any crying was quiet and controlled
and not a distraction to other jurors. Further, although the juror
cried during the court interview, no objection was made to the
mode of the interview or its thoroughness, nor was any claim
made that the juror was not being allowed to respond fully to the
questions or that the court needed to interview the other panel
members. We defer to the trial court’s decision as to how to
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conduct the interview and its ultimate conclusion that the juror
simply reacted in a human way and could remain fair and
impartial.
IV Fines, Fees, and Assessments
At the sentencing hearing, the court ordered Smith to pay
restitution in the amount of $6,236.75. He was also ordered to
pay a restitution fine of $300, a parole revocation fee of $300, a
court security fee of $40, and a criminal conviction assessment of
$30. These fines, fees, and assessments were all recommended in
the probation officer’s report and thus Smith had notice of their
potential imposition and he could have objected and asked for an
ability-to-pay hearing.
This claim has been forfeited because Smith did not object
below to the fines, fees, and assessments (he agreed to the
amount of the restitution order) and the statute impliedly
presumes the defendant has the ability to pay. (People v. Aguilar
(2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680,
728–729; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464;
People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)6 Even so,
Smith argues the trial court did not make any express finding as
to his ability to pay and thus under People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas) the fines, fees, and assessments
must be vacated. He also argues they fall under Eighth
Amendment analysis.
6 The Attorney General suggests this appeal is also barred by
Penal Code section 1237.2 because Smith did not first file a
motion in the trial court to correct the imposition of these fines,
fees, and assessments. But by its express terms, section 1237.2
only applies when the only issue on appeal concerns the
imposition or calculation of them. That is not this case.
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The law in this area is unquestionably murky. Our high
court has granted review in several cases that test the
boundaries of the ability-to-pay argument. But given the clear
forfeiture of this argument (the sentencing hearing here was
conducted post-Dueñas) it seems that no matter the decision in
those cases they will not revive the issue here.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SALTER, J.
We concur:
BIGELOW, P. J.
GRIMES., J.

Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
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