People v. Cervantes CA2/7

Filed 9/8/14 P. v. Cervantes CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B244992
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA377894)
v.
MICHAEL ANTHONY CERVANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
James N. Bianco, Judge. Affirmed.
Orly Ahrony and Christopher W. Blaylock for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters and Mary Sanchez, Deputy Attorneys General, for
Plaintiff and Respondent.
___________________________________
INTRODUCTION
A jury convicted Michael Anthony Cervantes of attempted robbery, carjacking,
unlawful taking or driving of a vehicle (“joyriding”) and robbery and found true related
gang and firearm allegations. The trial court sentenced Cervantes to state prison for a
term of 15 years to life plus 10 years. Cervantes appeals, challenging the sufficiency of
the evidence and claiming one witness’s testimony was improperly admitted. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
September 19, 2010.1
At about 3:20 a.m. on September 19, 2010, Cesar Bugarin was leaving work in his
red 2003 Dodge Ram truck when a silver Avalanche with four passengers inside pulled
up in front of Bugarin and blocked his path. Two bald Hispanic males between the ages
of 17 and 19 wearing big loose shirts got out of the Avalanche and approached Bugarin.
Based on their appearance, Bugarin believed they were gang members. One pointed a
“silver chrome plated” gun to Bugarin’s temple and told him to get out of the truck. The
men took Bugarin’s cell phone, hat, credit cards and $800 in cash and drove away in
Bugarin’s truck.
September 24, 2010.
At about 8:30 a.m. on September 24, 2010, Christopher Hall was listening to
music on his iPod while sitting at a bus stop in front of the animal hospital where his
cousin worked. A red Dodge Ram truck with two male Hispanic teenagers inside pulled
up beside Hall. Cervantes—the driver—wore an Atlanta Braves baseball cap with an
1 At trial, Cervantes was acquitted of robbery and carjacking counts relating to these
events involving Bugarin (counts 7 and 8), but because these facts are relevant to a
subsequent crime for which Cervantes was convicted (joyriding, count 4), we briefly
summarize them here.
2
“A” on it.2 Cervantes and his passenger started “throwing ‘A’” gang signs at Hall and
saying “What’s up nigger, fuck niggers,” and “[g]ive me everything you got.” The
passenger had trouble getting out of the truck for some reason so Hall was able to run to
the animal hospital.
A woman inside the animal hospital (Veronica Aparicio) heard the commotion,
saw the red truck and then saw Hall run to the door, saying he was “getting robbed.” She
came outside and wrote down the red truck’s license plate number when it circled back
around the block. As she spoke with the 9-1-1 operator to report what had happened, one
of the truck’s occupants called out something threatening like, “‘I know where you work
at[,’] like trying to say he’s going to come back.”
September 25, 2010.
The following day, at about 11:50 a.m., Michael Murillo and his two friends Juan
Cazares and Emilio Gomez were installing a stereo in Murillo’s Honda Accord. Murillo
went inside his house to grab a screwdriver, but as he walked back out, he saw two
Hispanic males with guns had approached Cazares and Gomez and were asking where
they were from, which they understood to mean a request for their gang affiliation. They
said, “Nowhere,” meaning “We don’t gang bang.” One of the gunmen said, “Avenues[,]”
and “I know Highland Park lives here in this house.”3 Murillo and his friends said “No
one from Highland Park lives here.”
One of the men pointed a “silver-ish” colored handgun at Murillo and directed him
and his friends to empty their pockets. That man and the other one with a revolver then
told Murillo and his friends to take off their pants. When Cazares “backed away a little
2 On September 30, 2010, when a police officer showed Hall a six-pack
photographic lineup, Hall identified Cervantes as the driver of the truck. At trial (two
years later), he initially testified Cervantes was the passenger but then acknowledged his
memory of the incident was better on September 30, 2010 than at the time of trial.
3 At trial, Cazares and Gomez explained Highland Park and Avenues are rival gangs
in Murillo’s neighborhood.
3
bit,” the one with the handgun “pistol whipped” Cazares, hitting him across the side of
his face. The same gunman directed Murillo and his friends to put the speakers in the
trunk of Murillo’s car, and they complied. Then the two gunmen got into Murillo’s car
and drove off.
Murillo called 9-1-1 (twice), and two officers arrived at his home about 40
minutes later. Murillo told Officer Gabriel Rivas and his partner the person with the
handgun was “Buster from Avenues, Carlos’[s] brother.” Murillo said he had gone to
high school with Cervantes’s brother Carlos. Murillo’s car was recovered a few houses
away from Cervantes’s residence.
September 27, 2010.
At about 1:20 a.m. on September 27, 2010, Los Angeles Police Department
Officers Fernando Salcedo and Francisco Serrano were on patrol when a red Dodge truck
caught their attention. In “roll call” that evening, they had just been “briefed” about a red
Dodge truck taken at gunpoint so they checked the truck’s license plate and verified that
it was the same truck (belonging to Cesar Bugarin) involved in the prior carjacking.
Officer Serrano requested additional units to assist with a traffic stop while Officer
Salcedo drove, following the red truck. After a few blocks, the red truck sped up and
then turned onto a smaller street where it stopped at an angle, blocking all traffic.
Cervantes and a female passenger jumped out of the truck and ran in different directions.
Cervantes looked directly at Officer Serrano. The female passenger was found hiding in
a yard nearby and taken into custody, but the officers were unable to find Cervantes that
night.
When the officers impounded Bugarin’s red Dodge truck, they also recovered a
digital camera inside which contained photographs of Cervantes in Bugarin’s truck and
wearing Bugarin’s hat.
Cervantes was later taken into custody and charged with the following crimes:
count 1, the attempted robbery of Christopher Hall on September 24, 2010 (Pen. Code, §§
4
664 & 211 [all further undesignated statutory references are to the Penal Code]); count 2,
the carjacking of Michael Murillo on September 25, 2010 (§ 215, subd. (a)); count 4,
unlawful driving or taking of Cesar Bugarin’s Dodge Ram truck on September 27, 2010
(Veh. Code, § 10851, subd. (a)); and count 5, the second degree robbery of Michael
Murillo on September 25, 2010 (§ 211).4 Except as to counts 2 and 4, it was further
alleged Cervantes had committed all of the offenses for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)); that Cervantes personally used a firearm during the
commission of count 2 (§ 12022.53, subd. (b)) and count 6 (§§ 12022.53, subd. (b),
12022.5, subds. (a) & (d)) and that a principal personally used a firearm in the
commission of counts 2 and 5 through 8 (§ 12022.53, subds. (b) & (e)(1)).
At trial, the People presented evidence of the facts summarized above. Murillo’s
two 9-1-1 calls were played for the jury.
Los Angeles Police Department Officer Juan Aguilar, assigned to the gang
enforcement detail in Northeast division, testified regarding his investigation of the
crimes involving Bugarin, Hall and Murillo, Gomez and Cazares.
On October 4, 2010, about a week after the crimes involving Murillo, Officer
Aguilar testified he went to Murillo’s workplace with a six-pack photographic lineup and
asked Murillo whether he saw one of the men who had pointed a gun at him and his
friends in the lineup. Murillo grabbed it, pointed to Cervantes’s picture and said, “That’s
him, that’s Buster.” When Officer Aguilar asked Murillo to circle the photograph of the
man he had identified, Murillo said, “I don’t want to go to court. If I circle, do I have to
go to court?” When Officer Aguilar responded, “Yes[,] you’re identifying the guy that
4 Cervantes was also charged with exhibiting a deadly weapon to a peace officer to
resist arrest (count 3, § 417.8); and assault with a firearm on a peace officer (count 6, §
245, subd. (d)(1)), relating to events before he was taken into custody on November 7,
2010; in addition, he was charged with the September 24, 2010 robbery (count 7, § 211)
and carjacking (count 8, § 215, subd. (a)) of Cesar Bugarin. However, at trial, the jury
found Cervantes not guilty of counts 3, 7 and 8, and the trial court dismissed count 6 in
the interest of justice (§ 1385).
5
robbed you[,]” Murillo said, “I don’t want to go to court. I don’t want to circle it. That’s
him. If I go to court, I might see his brother and that’s not going to be good.” Murillo
said he was afraid for his safety and the safety of his family.
Then, on October 12, 2010, Officer Aguilar testified, he showed Gomez (Murillo’s
friend) a six-pack photographic lineup at Gomez’s home. Gomez told Officer Aguilar,
“Well[,] I know it’s not five of those guys . . . . [W]ell[,] it looks like this guy,
but . . . it’s not him, it’s not him.” Officer Aguilar told Gomez to “just write what you
just [said].” Gomez circled Cervantes’s picture and wrote “looks like him, but it’s not
him.”5
Officer Aguilar was unable to interview Cazares because Cazares had provided
contact information that was not up to date. (According to Cazares’s testimony, at the
time of the initial investigation, he had given the police the information on his
identification, but he had already moved from that address at the time of the events at
Murillo’s house.)
Officer Aguilar testified he had known Cervantes for five or six years and had
interacted with him about 20 times. Cervantes had told Aguilar he (Cervantes) was an
Avenues gang member. In 2007, Cervantes used the gang moniker “Buster.” In 2010, he
used the moniker “Knuckles.” According to Officer Aguilar, gang members often
changed their monikers. He also testified that in his 8- to 10-years’ experience working
with Avenues gang members, Cervantes was the only “Buster” he knew, and Cervantes
remained an active Avenues gang member.
Based on a hypothetical tracking the evidence presented to the jury, Officer
Aguilar opined the attempted robbery, robberies, carjackings and joyriding were
committed for the benefit of, in association with or at the direction of the Avenues gang
with the specific intent to promote, further and assist in the gang activity of the gang’s
members. He testified Avenues gang members would often steal cars in order to commit
5 At trial, Gomez testified he did not circle Cervantes’s picture; Officer Aguilar did.
6
other crimes without being detected and commit robberies so the gang is more feared in
the community, enabling them to commit further crimes without being reported.
According to Officer Aguilar’s testimony, victims and witnesses of such crimes “will not
come forward and if they do come forward, they’re not going to come forward a hundred
percent . . . [because] at some point the intimidation factor takes [e]ffect . . . the fear of
them being victims of another crime [--] being shot and killed.”
Cervantes testified in his own defense. According to Cervantes’s testimony, he
was “courted in” to the Avenues gang when he was 16 because his brother Carlos (in
prison at the time of trial) was a member. His gang moniker was “Knuckles” but he had
the moniker “Buster” “before[.]” Cervantes acknowledged he had reported the name
“Buster” as his moniker to Officer Aguilar; he said his family had given him the name
“Buster”—“in Spanish it will be [‘]Travieso[’], like trouble making.”
Cervantes testified he had gotten all of his gang tattoos at once, when he was 17,
because he “wanted to be cool” but regretted them now. He said his life had changed in
late 2009 when he had a baby girl so he was no longer active in the gang at the time of
the 2010 crimes with which he was charged. He said he got shot in 2009 when he told
his friends he “didn’t want to be from the gang no more.” According to Cervantes, he
was told “there’s no way you’re going to get out” but he could be “active” “back stage”
“by selling drugs.” Although Cervantes had testified he was no longer active in the gang
and denied involvement in any crimes after 2009, he acknowledged on cross-examination
he was convicted of entering someone else’s pickup truck with “one of [his] homeys” and
trying to take that vehicle on May 19, 2010—four months before the crime involving
Bugarin and his truck.
Cervantes denied involvement in the carjacking involving Bugarin; he said he was
at his sister’s birthday party at the time. He said one of his friends brought the truck to
him a few days later, saying someone had left the keys in it, and others had driven the
truck too. Cervantes admitted he had taken pictures in the truck and knew it was stolen.
7
He denied involvement in the attempted robbery of Hall as well as the carjacking and
robbery of Murillo.
Cervantes’s mother Erika Lopez also testified in his defense. She said Cervantes
was at his sister’s birthday party on September 18, 2010. (Cesar Bugarin’s truck and
property were taken at about 3:20 a.m. on September 19, 2010.) Lopez testified
Cervantes spent the night in his room at her house that night and never left. Asked
whether she would be aware if he left, she testified: “Of course. He’s my son, I would
have to be behind him. . . . It’s a mother’s nature to know when your son is not around
you, you got to be looking for them.” Although Cervantes’s sister (and Lopez’s
daughter) turned four on August 24, Lopez testified Cervantes’s daughter was her first
granddaughter, and Cervantes had asked Lopez to let her first granddaughter (Cervantes’s
daughter) have her party before Lopez’s daughter’s fourth birthday party. “[H]e’s my
son so I gave it to him.” She showed the jury undated photos of Cervantes at a party.
Cervantes’s mother confirmed “[Cervantes] is a gang member.”
The jury found Cervantes guilty as charged in counts 1 (attempted robbery of
Hall), 2 (carjacking of Murillo), 4 (unlawful driving or taking of Bugarin’s truck) and 5
(robbery of Murillo).6
The trial court sentenced Cervantes to state prison as follows: on count 2
(carjacking (involving Murillo); § 215, subd. (a)), a term of 15 years to life, plus 10 years
for personal firearm use (§ 12022.53, subd. (b)); count 1 (attempted robbery (Hall); §§
664 & 211), a concurrent term of 12 years, comprised of the 2-year midterm for
attempted robbery plus 10 years for the related gang finding; count 4 (unlawful driving or
taking of Bugarin’s truck; Veh. Code, § 10851), a concurrent 2-year midterm; and count
5 (robbery (of Murillo); § 211), a 23-year term comprised of the 3-year midterm for
6 The jury found Cervantes not guilty of count 3 (exhibiting a deadly weapon to a
peace officer to resist arrest), 7 (robbery of Bugarin) and 8 (carjacking of Bugarin). At
the People’s request, the trial court had previously dismissed count 6 in the interest of
justice (§ 1385).
8
robbery plus 10 years each for the related gang (§ 186.22, subd. (b)(1)(C)) and firearm
(§ 12022.53, subd. (b)) findings, stayed pursuant to section 654.
Cervantes appeals.
DISCUSSION
Substantial Evidence Supports Cervantes’s Convictions for the Carjacking and
Robbery of Michael Murillo.
According to Cervantes, “No reasonable trier of fact could have found [him] guilty
beyond a reasonable doubt for the crimes committed against Mr. Murillo.” We disagree.
First, as Cervantes acknowledges, in considering his challenge to the sufficiency
of the evidence on appeal, “‘we review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.’” (People v. Jones (2013) 57 Cal. 4th
899, 960, quoting People v. Abilez (2007) 41 Cal. 4th 472, 504, further citations omitted.)
Further, “‘[t]he standard of review is the same in cases in which the People rely
mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]”
[Citation.] “‘Circumstantial evidence may be sufficient to connect a defendant with the
crime and to prove his guilt beyond a reasonable doubt.’”’ [Citation.]” (People v. Jones,
supra, 57 Cal.4th at pp. 960-961, quoting People v. Abilez, supra, 41 Cal.4th at p. 504.)
Reversal is not warranted “unless it appears ‘that upon no hypothesis whatever is
there sufficient substantial evidence to support [the conviction].’” (People v. Bolin
(1998) 18 Cal. 4th 297, 331.)
9
A carjacking conviction “requires proof that (1) the defendant took a vehicle that
was not his or hers (2) from the immediate presence of a person who possessed the
vehicle or was a passenger in the vehicle (3) against that person’s will (4) by using force
or fear and (5) with the intent of temporarily or permanently depriving the person of
possession of the vehicle.” (People v. Magallanes (2009) 173 Cal. App. 4th 529, 534,
citing § 215, subd. (a); People v. Hill (2000) 23 Cal. 4th 853, 858–859.)
Citing People v. Coleman (2007) 146 Cal. App. 4th 1363, 1365, but conceding that
it is not on point (as he says the carjacking conviction was reversed in that case because
“there was insufficient evidence to support actual or construction possession”), Cervantes
contends “this Court should do the same because there was not a proper identification, or
any other evidence to convict [him].” This is so, he says, because Murillo, Gomez and
Cazares “all stated that it was not [Cervantes] who robbed and carjacked them.”
The record defeats Cervantes’s argument. Murillo identified Cervantes on the day
of the crimes against him. Both Murillo and Gomez spoke on the calls to 9-1-1 on
September 25, 2010. When Murillo spoke with Officer Rivas about 40 minutes after
calling 9-1-1 to report what had occurred that day (September 25, 2010), he said he
recognized one of the two Hispanic males with guns as “Buster from Avenues, Carlos’s
brother.” Then, on October 4, 2010, Murillo pointed out Cervantes’s photograph in a six-
pack lineup, telling Officer Aguilar, “[T]hat’s him, that’s Buster.” However, as the jury
also heard, Murillo refused to fill out the form regarding his identification, expressing his
fear that if he had to go to court, he might “see [Cervantes’s] brother and that’s not going
to be good.” Although he repeatedly stated he did not want to go to court, Murillo also
unequivocally stated, “That’s him[,]” referring to Cervantes’s photograph. Officer
Aguilar also testified that Murillo had told him that people had come to his house, and he
(Murillo) was afraid they would be back to “get” him or his family.
When Gomez first viewed the six-pack lineup, he expressed his certainty that the
other five men were not involved, then indicated the photograph of Cervantes “looks like
him, but it’s not him.” In addition, Gomez had testified his brother was a Highland Park
10
gang member—the Avenues gang’s rival and had expressed his fear of testifying and
being considered a “snitch” as “snitches . . . get green lighted”—“like they’re going to
come and kill you.”
The jury also heard that although Murillo and Gomez had been subpoenaed to
appear, they both failed to return for the afternoon session of Cervantes’s preliminary
hearing, telling Officer Aguilar they were “afraid,” it was “not worth it,” and they had
already “d[one their] job” and were “done.” Cazares provided the police with contact
information he knew was no longer up to date and when he was located and called upon
to testify, he volunteered that he did not remember anything before the prosecutor even
asked her first question.
In People v. Cuevas (1995) 12 Cal. 4th 252, our Supreme Court observed “many
varied circumstances . . . may attend an out-of-court identification and affect its probative
value. These circumstances include, for example: (1) the identifying witness’s prior
familiarity with the defendant; (2) the witness’s opportunity to observe the perpetrator
during the commission of the crime; (3) whether the witness has a motive to falsely
implicate the defendant; and (4) the level of detail given by the witness in the out-of-
court identification and any accompanying description of the crime.” (Id. at p. 267,
citation omitted.) The jury received CALCRIM No. 315 so they received express
instructions regarding the factors to be considered in evaluating eyewitness testimony,
including whether, for example, the eyewitness knew or had contact with the defendant
before the crimes occurred. “Evidence of these circumstances can bolster the probative
value of the out-of-court identification by corroborating both that the witness actually
made the out-of-court identification (e.g., testimony by the police officer or other person
to whom the statement was made) and that the identification was reliable (e.g., evidence
that the witness was present at the scene of the crime and in a position to observe the
perpetrator, evidence that the witness had a prior familiarity with the defendant, or
evidence that the witness had no self-serving motive to implicate the defendant).”
(People v. Cuevas, supra, 12 Cal.4th at p. 267.)
11
Cervantes’s argument that Murillo’s, Gomez’s and Cazares’s “clear non-
identification” at trial compels reversal ignores our obligation to review the record as a
whole. The jury heard testimony that Cervantes was not a stranger to Murillo at the time
of the carjacking and robbery; Murillo already knew him as “Buster” and Carlos’s
brother and was certain of his identification at the time of the crimes because he
immediately recognized Cervantes based on this prior knowledge. Although Murillo
attempted at trial to deny and distance himself from his prior identification(s) of
Cervantes (People v. Jackson (2005) 129 Cal. App. 4th 129, 167 [“[j]urors are the sole
judges of a witness’s credibility and they are rightfully suspicious of trial testimony that
deviates 180 degrees from what the witness told the police . . . .”]), the jury heard
testimony regarding the fear Murillo, Gomez and Cazares all exhibited in coming to court
to testify against Cervantes. The carjacking and robbery took place in front of Murillo’s
home, one of the gunmen said he knew a Highland Park member lived there, Gomez’s
brother was a Highland Park member and all three victims knew Cervantes’s gang
(Avenues) as a Highland Park rival in the neighborhood. The jury had the opportunity to
assess Murillo’s as well as the other witnesses’ demeanor. Although Murillo, Gomez and
Cazares all tried to claim at trial they could not identify Cervantes, the jury heard both
police officers’ testimony which gave context to this apparently contradictory testimony.
Their efforts not to identify Cervantes when it came time to testify at trial cannot be
viewed in isolation, and it was up to the jury to determine the truth notwithstanding the
conflicts between the prior identifications and trial testimony. “It is the exclusive
province of the trier of fact to determine credibility and the truth or falsity of the facts
upon which credibility depends.” (People v. Allen (1985) 165 Cal. App. 3d 616, 623.)
On this record, the jury could reasonably conclude that Murillo knew Cervantes to
be one of the gunmen involved in the carjacking and robbery—as evidenced by his
unequivocal identifications initially provided to the police on more than one occasion—
and Gomez did not hesitate to eliminate the five other photographs in the six-pack lineup
he was shown and acknowledged that one of the gunmen looked like the photograph of
12
Cervantes, but when it was time to testify against Cervantes at trial, Murillo (as well as
his friends Gomez and Cazares) were too afraid to identify Cervantes in court.7 “A
reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.”
(People v. Lindbergh (2008) 45 Cal. 4th 1, 27.) It follows that substantial evidence
supports Cervantes’s carjacking and robbery convictions relating to Murillo and his
Honda Accord. (People v. Bolin, supra, 18 Cal.4th at p. 331 [reversal is unwarranted
“unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction]’”]; People v. Allen, supra, 165 Cal.App.3d at p. 623
[“Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury
to evaluate” and, as long as the identification is not “inherently improbable or factually
impossible under the circumstances shown,” the “testimony of a single eyewitness is
sufficient to support a criminal conviction”].)
Cervantes Forfeited His Claim of Error in the Admission of Testimony Regarding
Gomez’s Original Response When He Viewed the Photographic Lineup.
Cervantes also contends Officer Aguilar coerced Gomez’s initial statement about
the six-pack photographic lineup he was shown shortly after the crimes.8 We agree with
the Attorney General that Cervantes forfeited this claim by failing to raise such an
objection in the trial court. Cervantes says he did so, but we have reviewed the transcript,
and he is incorrect. In the cited passage, the prosecutor had shown Gomez the six-pack
lineup. During questioning, Gomez acknowledged that he had written the statement
“looks like him . . . but it’s not him” in his own handwriting and agreed it was his
signature written below the statement he wrote when he was originally asked whether he
7 According to the record, at least one of the witnesses was visibly “shaking” while
testifying against Cervantes at trial.
8 He also says his “due process rights were violated and the witnesses relating to the
Murillo incident should have been excluded from testifying at all.” (Italics added.)
Because he has failed to provide legal argument or citations to the record in support of
any claim of coercion involving any witness testimony other than Gomez’s, we limit our
discussion to the challenged testimony from Gomez.
13
recognized anyone involved in the incident at Murillo’s house. At trial, however, Gomez
testified he had not circled Cervantes’s photo; he said Officer Aguilar had. Gomez
testified he had not recognized anyone in the lineup, and he had only written the
statement because Officer Aguilar told him to do so. The prosecutor then said: “Okay.
So now you’ve never seen this guy before, but it kind of looks like him. Does that make
sense, Mr. Gomez, you never seen it [sic, him] before, but he kinda looks like him.
Which one is it?” Defense counsel objected to the prosecutor’s question challenging
Gomez’s apparently inconsistent testimony: “Badgering the witness.” Contrary to his
representation, Cervantes did not object to the admission of Gomez’s original statement
regarding the photographic lineup on the ground Officer Aguilar had obtained this prior
statement from Gomez through coercion. “A claim of coercion is not cognizable on
appeal in the absence of an objection to the testimony at trial.” (People v. Kennedy
(2005) 36 Cal. 4th 595, 612, disapproved on another ground in People v. Williams (2010)
49 Cal. 4th 405, 459.)
DISPOSITION
The judgment is affirmed.
WOODS, J.
We concur:
PERLUSS, P. J. ZELON, J.
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