In re Tony P. CA2/3

Filed 6/17/22 In re Tony P. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
In re TONY P., a Person Coming Under B312198
the Juvenile Court Law.
_____________________________________ (Los Angeles County
THE PEOPLE, Super. Ct. No. NJ29020)
Plaintiff and Respondent,
v.
TONY P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John H. Ing, Judge. Affirmed.
Laini Millar Melnick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Tony P. appeals from an order sustaining one count of
attempted murder in a Welfare and Institutions Code section 602
petition. The primary issue at his adjudication hearing and on
appeal was identification; that is, detectives identified Tony from
video surveillance of the crime. Tony now contends that the court
should have excluded this identification evidence, and further,
that it was so inherently improbable as to render the evidence
insufficient to support the order sustaining the petition. He also
contends that admitting photographic and similar evidence
showing him in gang attire and with guns was prejudicial error.
We reject all contentions and affirm the order.
BACKGROUND
I. The shooting and investigation
At just after 8:00 p.m. on January 5, 2020, Lizet S. was in a
car at 21st Street and Locust Avenue when she saw three people,
each with a gun, running toward an alley. They wore dark
clothing, and one or two of them were shooting guns. Soon
thereafter, responding officers found Regina Towns in an open
garage off an alley on Locust. Although she had been shot four to
five times, she survived.
Two different caliber casings (14 in total) were recovered
from the crime scene, suggesting that two guns were used. No
DNA or fingerprint testing was conducted on the physical
evidence.
2
Detective Carlos Del Real investigated the shooting. As
part of his investigation, he obtained video surveillance from
residences near where the crime occurred. The videos show three
males, one of whom has a red bandana tied around his face and is
wearing long black shorts, long white socks pulled up, and black
shoes with white detailing. The other two men’s faces are
uncovered. The video also shows the car they arrive and leave in.
The men go down an alley, fire guns, and run back to their car.
Detective Del Real described to the court what he saw in the
videos: three people walking in the alley and firing
“indiscriminately” in a northeast direction, muzzle flashes, and
the people arriving and leaving in a car.
And, as we discuss in greater detail below, Detective Del
Real testified that he was familiar with Tony from prior contacts
and recognized him as one of the individuals in the video. A
second detective, Hector Cardiel, watched the video, and he too
recognized Tony, as well as a second individual, Jose S. Detective
Cardiel had previously seen Jose S. and Tony together. Also, in
the months before the shooting, the detective had seen Tony in a
car similar to the one used in the current shooting, an early
1990’s or early 2000’s model, dark blue or navy Honda Accord
with missing hubcaps.
After Tony was identified as a suspect, officers searched his
bedroom. A red bandana and Reebok Classic shoes similar to the
ones worn by one of the men in the video were recovered, as were
Tony’s cellphone and a notebook containing handwritten rap
lyrics. Officers discovered images on Tony’s phone of him
wearing a red bandana around his neck and a Raiders shirt and
holding a loaded revolver. They also discovered Instagram
images of Tony wearing Reebok Classic shoes and a red bandana.
3
In an Instagram image posted two days before the shooting, Tony
is wearing a red bandana and has a revolver tucked in his
waistband. According to a gang expert, bandanas, certain styles
of Reebok shoes, and wearing shorts with high socks are common
gang attire.
Tony’s Instagram account referred to just one news article:
an article about the shooting of Towns.1
II. The petition and adjudication
The juvenile court sustained one count of attempted willful,
deliberate, and premeditated attempted murder (Pen. Code,
§§ 664, 187, subd. (a)).2 The juvenile court ordered Tony
committed to the Department of Corrections and Rehabilitation,
Division of Juvenile Facilities, and set the maximum term of
confinement at life.
DISCUSSION
I. Admissibility of detectives’ testimony identifying Tony
Tony contends that there was an insufficient foundation for
the detectives’ testimony identifying him. We disagree.
A. Additional background
After the defense objected that Detective Del Real could not
give a lay opinion about what the video surveillance showed and
that there was an improper foundation for his testimony, the
detective testified about his prior contacts with Tony. He said he
1
In his defense, Tony presented, among others, the testimony of a
gang expert who discussed gang culture and of an eyewitness
identification and memory expert. We discuss their testimony,
where relevant, below.
2
The People dismissed a second count of attempted murder.
4
first encountered Tony in 2011,3 when the detective arrested
Tony’s father at the family’s house. The detective had a second
documented contact with Tony in July 2017, during a probation
compliance search. During this second contact, the detective
gave Tony his Miranda4 rights and was at the house for an hour.
The detective had a third documented contact with Tony when
the detective served a search warrant at Tony’s house in
September 2018. This third contact with Tony lasted about five
minutes. To prepare for that third contact, the detective
reviewed video surveillance that included Tony.
In addition to these documented contacts, Detective Del
Real had, in the about five years before trial, about five to ten
undocumented contacts with Tony in the field. When the
detective had contact with Tony, Tony was wearing a red
bandana. The detective described Tony’s clothes as distinctive, in
that he does not wear current gang trends and instead wears “the
classic” “cholo Sureno style” of baggy pants, loose-fitting T-shirts,
long shorts with white socks pulled up, and Nike Cortez or
Reebok Classic shoes. The detective also described Tony as
having a distinctive facial feature: bushy eyebrows.
The detective added that he first watched the video at the
residence where it was taken. After rewatching it several times
at his office, he recognized Tony as the car’s front passenger. The
detective recognized Tony’s clothing: the red bandana, shorts
and white socks, black Reebok Classic shoes, his lighter
complexion, and thin build.
Detective Cardiel testified that he also was familiar with
Tony. In 2018, the detective was part of the team that served the
3
In 2011, Tony was nine years old.
4
Miranda v. Arizona (1966) 384 U.S. 436.
5
search warrant. At that time, the detective arrested Tony and
spoke to him for a couple of minutes. Then, in November 2019,
Detective Cardiel was involved in a two-months-long surveillance
of locations connected to a murder in which it was believed the
East Side Longos gang was involved. To prepare for the
surveillance, he reviewed photographs of individuals to focus on,
including Jose S. Over the course of that two-month surveillance,
the detective saw Jose S. about five times, including once at
Tony’s house. On New Years’ Eve 2019, the detective saw Tony
in an early 1990’s or early 2000’s dark blue or navy (almost black)
four-door Honda Accord. The car was distinctive due to its bad
paint job, dark tinted rear windows, and the absence of driver’s
side hubcaps. Detective Cardiel saw Tony and Jose S. together
again during that surveillance period.
A few days after Towns was shot, Detective Cardiel
watched the video surveillance. Before watching it, nobody gave
him any information about the suspects he was about to see. He
immediately recognized Jose S., and he also recognized Tony.
The detective could not identify the third person. The car was
similar to the one the detective had seen Tony in during the 2019
surveillance.
B. The court did not abuse its discretion by admitting
identification evidence
Lay opinion testimony is admissible if it is rationally based
on the witness’s perception and helpful to a clear understanding
of the witness’s testimony. (Evid. Code, § 800.) A lay opinion
must concern a subject of such common knowledge that people of
ordinary education could reach a conclusion as intelligently as
the witness. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1383.)
Where an officer is familiar with the defendant’s appearance, the
6
officer can offer a lay opinion identifying the defendant in
surveillance video of a crime. (People v. Leon (2015) 61 Cal.4th
569, 600–601 (Leon).) We review a trial court’s admission of such
lay opinion testimony for abuse of discretion. (Id. at p. 600.)
In Leon, supra, 61 Cal.4th at page 600, a detective
identified the defendant in surveillance videos. The detective
was familiar with the defendant based on the detective’s post-
arrest contacts with the defendant. (Id. at pp. 600–601.) That is,
the detective was the one who arrested the defendant, saw him
nearly 10 times thereafter, and spent about two hours with him.
(Id. at p. 600.) Moreover, the jacket the defendant was wearing
when arrested appeared to be the same jacket worn by the
suspect in the surveillance videos, and the car in the videos
looked like the car the defendant was in when arrested. (Id. at
pp. 600–601.) The Court of Appeal held that the trial court did
not abuse its discretion by admitting the evidence. (Id. at p. 601.)
Leon cited People v. Perry (1976) 60 Cal.App.3d 608, 613,
where a police officer reviewed video surveillance of a robbery.
The officer was able to identify the defendant as one of the
robbers based on the officer’s “numerous” prior contacts with the
defendant in the five years before the robbery and based on the
defendant’s “abnormal-appearing eye.” (Id. at p. 610.) Other
people who did not witness the robbery but who knew the
defendant (e.g., his apartment manager, the defendant’s former
employer, and brother) also opined on whether the defendant was
the person in the video surveillance, coming to different opinions.
(Id. at pp. 611–612.) In upholding the identifications, the court
said the witnesses’ opinions were sufficiently based on personal
knowledge, and that the degree of knowledge went to the weight
rather than the admissibility of the opinions. (Id. at p. 613;
7
accord, People v. Mixon (1982) 129 Cal.App.3d 118, 131–132
(Mixon) [officers’ identification of defendant from surveillance
photographs admissible because officer was familiar with
defendant from prior contacts].)
Tony attempts to distinguish this authority by
characterizing the detectives’ contacts with him as “nowhere near
as extensive” as in those cases. He thus states that Detective Del
Real had only two brief in-person contacts with him, the one in
2017 and the second in 2019, and he dismisses the 2018 contact
as having occurred “in passing” during the execution of a search
warrant with numerous officers. Tony similarly dismisses
Detective Del Real’s field contacts with him and Detective
Cardiel’s contacts with him during the two-month surveillance.
Although Tony urges us to find that these differences go to
admissibility and not to the weight of the evidence, we cannot do
so. (See, e.g., People v. Perry, supra, 60 Cal.App.3d at p. 613;
Mixon, supra, 129 Cal.App.3d at p. 131.) Detective Del Real had
seen Tony in a variety of contexts over about eight years. He saw
him in the field and at Tony’s house. He saw him starting in
2011, when Tony would have been about nine years old, until
2019, when he was 17 years old. That last contact with Tony was
just months before the shooting at issue occurred. Throughout
that time, Tony had a distinctive way of dressing that generally
included a red bandana tied around his neck. Tony’s point that
others, gang and nongang members alike, shared his style of
dress is well-taken. But the ultimate and also valid point is that
Tony’s style of dress (just like the unique jacket the Leon
defendant wore) was another fact that, when combined with the
detectives’ familiarity with him, laid a proper foundation for
admitting the identification testimony.
8
This foundational evidence is similar to that in Mixon,
supra, 129 Cal.App.3d at page 129, where Officer Brown testified
that he had seen the defendant on numerous occasions over 10
years during street contacts but could not pinpoint the exact
years when he learned of his identity. Officer Brown had never
conversed with the defendant but had been within speaking
distance of him. (Ibid.) And, similar to the way in which Tony’s
face here was obscured, the Mixon robbery suspect wore a ski cap
pulled down to his earlobes, and the camera angle was such that
his face was visible from only the middle of the nose down. (Id. at
p. 125.) Here, Detective Del Real had closer contact with Tony,
having read him his Miranda rights. And Detective Cardiel saw
Tony in the course of a surveillance operation, which by its
nature, should have required attention to detail.
Tony next argues that the detectives’ testimony was
inadmissible because it did not help the trier of fact determine
identity. (See generally Mixon, supra, 129 Cal.App.3d at p. 128.)
Again, we do not agree. Detective Del Real was able to point out
distinctive things about the suspect’s clothing in the video, given
his familiarity with how Tony was dressed on the prior occasions
the detective had seen him. Detective Cardiel also testified that
the car used by Towns’s assailants looked like the same car the
detective had seen Tony in on New Year’s Eve 2019, less than one
week before Towns was shot. Tony also had been seen with Jose
S., whom Detective Cardiel identified as one of the three people
in the video.
Finally, Tony argues that the detectives’ opinion that he
was the person in the video was tantamount to an opinion he
committed the offense and, as such, was inadmissible as an
opinion on guilt. (See generally People v. Torres (1995) 33
9
Cal.App.4th 37, 47 [witness not permitted to express opinion on
defendant’s guilt or innocence].) There is a difference between
opining on whether a person is guilty and giving evidence tending
to show guilt. Tony’s argument fails to appreciate that difference
by suggesting that any evidence linking a defendant to a crime is
inadmissible because it supports guilt. That is not the law.
II. Sufficiency of the evidence to support attempted murder
Relying on the supposed inherent improbability of the
evidence identifying him, Tony contends that the evidence was
insufficient to sustain the allegations of attempted murder.
A challenge to the sufficiency of the evidence requires us to
review the entire record in the light most favorable to the
judgment to determine whether it contains evidence that is
reasonable, credible, and of solid value such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We do not
resolve credibility issues or evidentiary conflicts; such are the
exclusive province of the trier of fact. (People v. Young (2005) 34
Cal.4th 1149, 1181.) Unless testimony is physically impossible or
inherently improbable, a single witness’s testimony is sufficient
to support a conviction. (Ibid.) Although we will not uphold a
judgment or verdict based upon inherently improbable evidence,
testimony that merely discloses unusual circumstances does not
come within that category. (People v. Dalton (2019) 7 Cal.5th
166, 209.) For us to reject a witness’s statement that a trial court
has believed, it must be physically impossible that the statement
is true, or its falsity must be apparent without resort to
inferences or deductions. (Ibid.)
As Tony points out, no DNA or fingerprint tests were
conducted on the bullet casings; the guns were never recovered;
10
Towns apparently gave no statement to the police; Lizet S. could
not describe Towns’s assailants, except to say there were three of
them wearing dark clothing and carrying guns; and the motive
for the crime was unclear, although there was a slight suggestion
it was gang-related. Identification was therefore the key issue.
As to that, Tony draws on the testimony of his eyewitness
and memory expert to argue that the detectives’ identifications
were inherently improbable or unreliable. The expert testified
that the main factors influencing an identification’s accuracy and
reliability are (1) the quality of the video, (2) the person’s
familiarity with the individual in the video, and (3) the time that
lapsed between when the person last saw the individual and
when they had to make the identification.
First, the expert testified that the video surveillance was of
low quality because the individual’s face was partially obscured.
Hence, Tony argues that the identifications were not based on
recognizing his face or individual characteristics but merely on
his not uncommon style of gang dress. However, Detective Del
Real based his identification not just on what he described as
Tony’s distinct way of dressing but also on his lighter complexion
and thin build. While these may not be distinctive or unusual
characteristics, it is not necessary that a person’s characteristics
be unique to make a person identifiable. While a person may be
more readily identifiable if they have a facial abnormality (see,
e.g., People v. Perry, supra, 60 Cal.App.3d at p. 610 [defendant
had abnormal eye]), having “normal” features does not make
them inherently unidentifiable. And while Tony’s distinct way of
dressing, which included a red bandana and a certain style of
11
shoes, was certainly shared by others,5 it nonetheless was Tony’s
style and, as such, was another factor that helped the detectives
recognize him in the video.6
Second, Tony discounts the detectives’ testimony that they
were familiar with him. We have already addressed this issue,
noting that even though the detectives could not see Tony’s entire
face, they were both familiar with him. Detective Cardiel had,
within months of the shooting, seen him at least twice before.
Detective Del Real had seen him three times in person (one time
being when the detective arrested Tony), and an additional five to
ten times in the field.
Finally, Tony argues that human memory is limited. He
thus refers to the expert’s testimony that, for example, repeated
viewing of a suspect can lead to overconfidence in an
identification and that if a witness’s memory of a face is weak,
the witness will tend to use clothing cues to make an
identification. The court, however, heard that evidence,
evaluated it in the context of this specific case, and was entitled
to give it whatever weight it believed appropriate. (See generally
People v. Gray (1960) 180 Cal.App.2d 594, 598–599 [trier of fact
determines credibility of expert witnesses and weight to be given
their testimony].)
Otherwise, the identifications, notably, were not
uncorroborated. (See generally People v. Scott (1978) 21 Cal.3d
5
The People’s witness testified that a number of gangs
associate with the color red, and the defense gang expert said
that at least four different Latino gangs use the color red.
6
At a preadjudication hearing under In re Dennis H. (1971)
19 Cal.App.3d 350 regarding detention, Detective Del Real said
he also recognized Tony’s “body language,” meaning the way he
walked, his gait.
12
284, 296 [uncorroborated testimony of single witness is sufficient
to sustain a conviction unless testimony is physically impossible
or inherently improbable].) Two detectives identified Tony.
Detective Del Real first identified him from the video. Then,
without being given any information about who he might see in
the surveillance video, Detective Cardiel independently identified
Tony. He also identified Jose S., who had been seen with Tony in
the months before Towns was shot. Other evidence connected
Tony to the crime. Just one week before Towns was shot, Tony
was seen in an older model, dark-colored Honda Accord with
missing hubcaps similar to the one the suspects used in the
shooting. Also, on his Instagram account, Tony referred to just
one news article, one about the shooting. While this evidence
might be circumstantial, it nonetheless supported the
adjudication order.
We therefore cannot find, under the standard of review and
given the combination of factors that led the detectives to identify
Tony, that the identifications were inherently improbable so as to
render the evidence insufficient to support the adjudication.
III. Admission of evidence
Next, Tony contends that the court improperly admitted,
over the defense objection, the photographs, video, and social
media posts extracted from his cell phone showing him in gang
attire and with guns.
Only relevant evidence is admissible. (Evid. Code, § 350.)
“Relevant evidence” includes evidence relevant to a witness’s or
hearsay declarant’s credibility, having any tendency in reason to
prove or disprove any disputed fact that is of consequence to
determining the action. (Id., § 210.) Evidence may be relevant if
it tends logically, naturally and by reasonable inference to
13
establish material facts such as identity, intent, or motive.
(People v. Hamilton (2009) 45 Cal.4th 863, 913.) But even
relevant evidence may be excluded if its probative value is
outweighed by the risk of undue delay, undue prejudice, or
confusion. (Evid. Code, § 352; Hamilton, at p. 914.) We review a
trial court’s decision to admit or exclude evidence for abuse of
discretion. (People v. Jackson (2016) 1 Cal.5th 269, 330.)
Here, the court found that the challenged evidence was
relevant to establish identity. Some of the photographs showed
Tony wearing a red bandana and Reebok Classic shoes, both of
which were worn by one of the three people in the video
surveillance. There were also photographs of Tony with Jose S.,
who was identified as one of the individuals involved in the
shooting. As we have said, Detective Del Real had seen Tony on
multiple occasions in such attire and this was one of the reasons
he recognized Tony. These photographs therefore corroborated
the detective’s testimony that Tony dressed in this manner.
We find more persuasive Tony’s assertion that the court
erred in admitting other evidence, including images of Tony in a
Raiders shirt and holding a loaded revolver, a video in which
Tony can be heard making disparaging comments about rival
Crips gangs, and his rap lyrics. The probative value of this
evidence was questionable. As to images of Tony with a gun,
officers never recovered the guns used in this case, and there was
no evidence that the gun Tony had in the video was used to shoot
Towns. “When the prosecution relies on evidence regarding a
specific type of weapon, it is error to admit evidence that other
weapons were found in the defendant’s possession, for such
evidence tends to show not that he committed the crime, but only
that he is the sort of person who carries deadly weapons.” (People
14
v. Barnwell (2007) 41 Cal.4th 1038, 1056.) Therefore, the
evidence simply suggested that Tony was the sort of person who
carries deadly weapons.
As for the disparaging remarks about Crips in the video
and rap lyrics, there was no evidence that Towns was a Crips
gang member, mistaken for one, or was even a gang member.
There was no gang allegation, and it was unclear whether the
crime was gang-related. While rap lyrics can, in some
circumstances, constitute circumstantial evidence of intent or
motive (see, e.g., People v. Johnson (2019) 32 Cal.App.5th 26, 60–
61; People v. Zepeda (2008) 167 Cal.App.4th 25, 35), here there
was no connection between the lyrics and the charges. We are
therefore doubtful about the relevance of the rap lyrics.
However, even if some of this evidence should have been
excluded, we cannot find that any error in admitting it was
prejudicial. (See generally People v. Partida (2005) 37 Cal.4th
428, 439 [absent issue of fundamental fairness, state law error in
admitting evidence is subject to People v. Watson (1956) 46 Cal.2d
818, 836 test].) As we have said, photographs depicting Tony
wearing clothes similar to those worn by one of the possible
shooters were relevant to identity. And while there was no gang
allegation at issue, that Tony was a gang member was hardly a
revelation. It therefore is not reasonably probable the outcome
would have been more favorable to Tony absent the admission of
some of the photographs and rap lyrics, especially where, as here,
the court, rather than a jury, sat as the trier of fact. (See, e.g.,
People v. Walkkein (1993) 14 Cal.App.4th 1401, 1408
[professional jurist can weigh admissible evidence without being
prejudiced by extraneous matters]; In re Hernandez (1966) 64
Cal.2d 850, 851 [judge could weigh evidence without being
15
prejudiced by prior felony conviction]; People v. Lashley (1991) 1
Cal.App.4th 938, 952 [same as to inflammatory argument].)
DISPOSITION
The order adjudging Tony P. a ward of the court and
sustaining the petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
KALRA, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
16