Opinion
D072041
09-12-2018
THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO COVARRUBIAS, Defendant and Appellant.
Cynthia M. Jones, 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, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD264540) APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed in part; reversed and remanded with directions in part. Cynthia M. Jones, 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, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
In 2007, Damon Green and a friend stopped at a taco shop after a night of drinking. Green struck up a conversation with a Hispanic male, who was accompanied by another Hispanic male. The conversation became heated, and the Hispanic men left. They returned a few minutes later, and one of them shot Green to death. Eyewitnesses gave police general descriptions of the suspects, but the crime went unsolved for several years.
In 2015, Martin Villalpando was charged with first degree murder for the 2007 shooting after DNA evidence established he was at the taco shop during the crime. Although "cold case" detectives believed Villalpando was one of the two Hispanic men involved, they suspected the other Hispanic man was the actual shooter. As part of a plea deal, Villalpando was allowed to plead guilty to voluntary manslaughter in exchange for testifying truthfully that defendant Santiago Covarrubias was the actual shooter. Covarrubias's girlfriend at the time of the shooting (and ex-girlfriend at the time of trial) also said he looked "a lot" like the shooter seen in surveillance video of the shooting.
A jury found Covarrubias guilty of first degree murder, and found true the allegation that he personally discharged a firearm causing death. The trial court sentenced him to a total term of 50 years to life.
On appeal, Covarrubias raises three issues regarding his conviction. First, he contends the trial court erred by admitting evidence of his ex-girlfriend's identification of him, arguing it was too equivocal and resulted from police pressure. Second, he challenges the sufficiency of the evidence corroborating Villalpando's accomplice testimony. Third, Covarrubias contends the trial court erred by allowing a detective to testify that a composite sketch of the shooter resembled a description of the shooter and photos of him. We reject these contentions and affirm Covarrubias's conviction.
Covarrubias also raises two issues regarding his sentence. First, he contends the abstract of judgment contains a clerical error that should be corrected. Second, he contends we should remand the matter for resentencing in light of intervening authority that now allows the trial court to exercise discretion with respect to striking firearm enhancements. The Attorney General concedes both issues. We agree the concession is appropriate. Accordingly, we vacate the sentence and remand for resentencing as specified in the Disposition.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
2007 Murder and Initial Investigation
Damon Green and D.B. were coworkers and friends. After an evening at a nightclub, the two men stopped to eat at a taco shop in a small shopping center in the Mid City area around 1:30 or 2:00 a.m. on March 20, 2007. D.B. observed a group of four Hispanic males enter the taco shop. Two of them left immediately, while the other two ordered food and sat at the table next to D.B. and Green. Green struck up a conversation with one of them, whom D.B. later described as "the shooter." D.B. and the shooter's friend mostly sat quietly during the conversation.
The conversation started off friendly, but became more intense. Green and the shooter discussed the fact they were both fathers, and Green expressed his view that people should learn Spanish because "Spanish is the future, and stuff like that." D.B. saw that the shooter "was getting agitated and irritated," and "felt intimidated and disrespected" by Green's size—6' 3" and 272 pounds. D.B. apologized to the shooter on Green's behalf and told Green to leave him alone.
The shooter asked Green where he was from, and Green responded he was from Wyoming or Montana. Green was just "messing with" him. Green asked the shooter where he was from, and "the shooter said he was from right here, 'you know, man, I'm from East Diego.' " At the time, this did not "trigger" D.B. to think about gangs, but he later testified at trial that he understood the shooter to be indicating he was a member of the East San Diego criminal street gang. This concerned D.B., who told Green, "It's time to go."
But Green kept talking to the shooter, asking whether he dealt drugs. The shooter responded, "yeah, you know, I do what I got to do." Green asked if the shooter had any drugs with him, which made the shooter "real agitated and upset" that Green was "being nosey." Green then asked the shooter for some drugs, which prompted the shooter to stand up and reply, "Okay, I'll go get some."
D.B. thought Green was still just "messing with" the shooter because D.B. and Green were subject to random drug-testing at their jobs as bus drivers.
D.B. did not think the shooter was going to get drugs; he thought he was going to get a gun. D.B. told Green, "It's time to get out of here," but Green wanted to get a slushy drink at the donut shop next door. D.B. warned other people in the taco shop to get out. D.B. got in his car and honked at Green, telling him, "Come on, let's go."
After a few minutes, D.B. saw the shooter and his friend walk around from behind the donut shop. As Green exited the donut shop, the shooter confronted him with a gun and said, "I got the shit right now . . . , what's up." Green ran back inside the donut shop and slammed the door, but the shooter shot through the glass door and ran in after Green. The shooter fired four or five shots as Green ran to hide behind the counter. After the shooting, the shooter left through the broken glass window and ran with his friend in the direction they had come. Security cameras in the donut shop recorded parts of the incident.
D.B. ran inside the donut shop and called 911. Green was bleeding, unconscious, and "[h]is eyes looked like he was dead." Green died from gunshot wounds to his buttock and thigh, which severed his femoral artery and femoral veins.
At the crime scene, D.B. described the shooter to police as a Hispanic male in his early 20's, measuring about 5' 8" tall, and weighing about 220 pounds. He had a shaved head and a small goatee, and was wearing Converse shoes, blue pants, a long-sleeve white shirt with vertical stripes, a baseball hat, and a "flashy" diamond earring in at least one ear.
D.B. clarified at trial that he never stood next to the shooter or his friend, so he was unable to compare their heights to his own (6 feet tall).
D.B. described the non-shooter to police as a Hispanic male in his early 20's who was "approximately the same height" as the shooter, but about 20 pounds lighter. The friend also had a shaved head, and he wore white Converse shoes, blue jeans, and a short- sleeved t-shirt. D.B. also said the non-shooter had "crooked" teeth that were "wedged together."
D.B. told the first officer he encountered that the shirt was white; he told a detective a few hours later the shirt was black.
D.B. told police he would be able to identify the shooter, so a detective showed him a photo lineup of potential suspects. D.B. circled and initialed one of the photos, and told the detective he was "100% sure that that looks like the guy/same face—none of the others match." However, the person whose photo he circled was incarcerated at the time of the murder. D.B. clarified at trial that he "[wasn't] identifying him as the shooter, but [as] someone that looked like him." (Italics added.) D.B. worked with a detective to develop a composite sketch of the shooter, which was admitted in evidence at trial.
The detective also testified D.B. "never said that was the guy," only that it "looks like" the shooter. (Italics added.)
Police interviewed the donut shop employee who was working when the shooting occurred. The employee said he could not identify the shooter because he (the employee) dropped to the floor when the shooting started outside the donut shop. After the shooting, he saw two "20-something" Hispanic males run north. One of the men had a "medium build," a beard that "came down the side of his face and then around to the front," combed-back hair, and he was wearing a baseball cap. The other man was also wearing a baseball cap.
Police also interviewed the taco shop employee who was working the night of the shooting. He told police he took the Hispanic men's food order that night, that they ordered in English and Spanish, "but their Spanish wasn't very good." The employee said he is 5' 7" tall, and the Hispanic men "were just slightly taller than" him, maybe 5' 8" or 5' 9," and "appeared young." At trial, the employee testified on direct examination that he did not take the Hispanic men's order (he only cooked their food), and he was never "in a position where [he] could see how tall they were." The employee testified the suspects never returned to the taco shop, and Covarrubias was not one of them.
The taco shop employee directed police to the trash left by the two Hispanic men. Forensic technicians processed the trash remains for DNA and obtained a sample, but it generated no immediate hits in the CODIS database. Technicians also processed the taco shop's glass front door for fingerprints, but none of the prints belonged to a Hispanic male.
With no further leads, the investigation went cold.
Cold Case Investigation
In 2012, a DNA sample entered into the CODIS database generated a hit on the 2007 taco shop sample. The DNA matched a Hispanic male named Martin Villalpando. Detectives interviewed him, but he claimed to have no memory of the 2007 shooting.
Detectives learned through DMV and other records that Villalpando drove and later owned a 1995 Cadillac registered to a woman who lived with Covarrubias, and that Covarrubias had also been documented driving the car. Lori Adams, a San Diego Police "cold case" detective working in the homicide division, found it significant that Covarrubias lived about three blocks northwest of the taco shop because the shooting suspects ran from the crime scene in that direction.
Detective Adams obtained photographs of Covarrubias from 2004 and 2009, and testified she saw similarities between them and the composite sketch developed from D.B.'s description of the shooter. She said she also saw similarities between the sketch and photos of Villalpando. Another detective showed D.B. photo lineups that included photos of Covarrubias and Villalpando, but D.B. did not identify either of them. The detective also showed the taco shop employee a photo lineup that included Covarrubias's photo, but the employee did not identify Covarrubias. A DNA sample obtained from Covarrubias did not match any samples collected from the taco shop.
Detective Adams continued investigating the cold case for another two years, during which time she considered and ruled out many other suspects who matched witness descriptions or had contacts near the crime scene. In 2014, she interviewed Villalpando, who again claimed to have no memory of witnessing anything similar to the 2007 shooting.
In June 2015, Detective Adams and an investigator from the district attorney's office, Tony Johnson, interviewed M.R., who dated Covarrubias at the time of the murder. M.R. said Covarrubias sold drugs and was once a gang member. M.R. said she knew nothing about the 2007 shooting. But when the investigators showed her multiple still photos from the donut shop's security footage, M.R. "pointed to a picture and said, 'I don't know who that is, but I know who that is.' " When Detective Adams asked her to clarify, M.R. said the person in the hat "looks like Santiago [Covarrubias]." The district attorney investigator asked, "Well, if I told you that the person in the striped shirt was, in fact, Martin Villalpando, who do you think the other person would be?" After "a couple minutes," M.R. said, " "Santiago,' " because "that's who Martin would be with."
We discuss M.R.'s interview in greater detail in part I.A.
About five weeks after M.R.'s interview, police arrested Villalpando. Detective Adams and Investigator Johnson interviewed Villalpando that day, but he offered no details on the shooting. However, about two months later, Villalpando met with investigators and the prosecutor, and identified Covarrubias as the shooter. As part of a plea deal, Villalpando agreed to testify truthfully at Covarrubias's trial in exchange for being allowed to plead guilty to voluntary manslaughter instead of first degree murder.
We discuss Villalpando's testimony in greater detail in part II.A.
Gang Evidence
In light of D.B.'s statement that the shooter referenced "East Diego," the prosecution introduced evidence intended to show this was a reference to the East San Diego criminal street gang (sometimes referred to as the East Side gang) and that Covarrubias was affiliated with this gang (either directly, or through the affiliated Euclid Street gang).
Detective Ron Newquist, a homicide detective who oversaw the crime scene processing in this case, also testified about his extensive prior experience working patrol, crime suppression, and gangs in the Mid City area where the shooting occurred. Newquist said the East San Diego gang was "one of the predominant street gangs in East San Diego," with about 300 members in 2007. The shopping center where the shooting occurred was "definitely" in East San Diego gang territory.
Newquist also discussed the Euclid Street gang, which was documented as a criminal street gang in 1997, and had "morphed into East Side" by the early 2000's.
Addressing gang culture, Detective Newquist testified "respect" is "[e]verything." Gangs command respect through fear and intimidation, and retaliate against those who cooperate with police or testify against gang members. Newquist opined that if somebody at the taco shop said, "I'm from right here, East San Diego," someone would infer the person is "claiming" to be a member of the East San Diego or East Side gang. He added that East San Diego gang members would "typically claim as" East Side or Diego, but not "East Diego" (as D.B. reported hearing the shooter say).
The parties stipulated to the following gang-related facts about Covarrubias: "On March 15, 2001, [Covarrubias] told . . . an employee at a nightclub, 'I'm from Eastside Euclid.' [¶] . . . [L]ater on March 15, 2001, when asked by [police] who he used to 'gang bang' with, [Covarrubias] said, 'The GDP. Or the Get Down Posse, a high school clique, and Euclid Street out by East San Diego.' " The trial court granted Covarrubias's motion in limine to exclude evidence regarding the March 15, 2001 incident that prompted the stipulation.
Regarding the 2001 incident, Covarrubias was charged in 2013 with first degree murder, with a firearm-use enhancement allegation and a lying-in-wait special circumstance allegation. The probation officer's report in the present case describes the 2001 incident as follows: "The victim, who was a bouncer at a strip club, encountered the two defendants at his place of employment. During the course of his duties, the victim had a negative encounter with both defendants. After the strip club closed, the defendants returned to the club with a firearm and the co-defendant shot the victim as he was escorting a female bartender to her vehicle. The defendant provided the co-defendant with the firearm, drove the co-defendant to the murder scene, and then assisted with the co-defendant fleeing from the scene." Covarrubias pleaded guilty to the lesser included offense of voluntary manslaughter, and was sentenced to 12 years in prison.
Defense Case
Covarrubias's defense focused on eyewitness misidentification and Villalpando's untrustworthiness and violent nature. Regarding misidentification, the defense presented forensic technicians who confirmed no fingerprints or DNA samples from the crime scene matched Covarrubias. Witnesses also testified they went with Covarrubias to the taco shop in years following the shooting and he did not appear apprehensive about being there.
Regarding Villalpando's character, Covarrubias's brother testified about an incident in 2006 or 2007 when Villalpando threatened to kill an apartment security guard with a knife. The brother also acknowledged he and Covarrubias were once members of the Euclid Street gang, which was affiliated with the East San Diego gang. Both gangs use similar hand signs for the letter "E," and the brother identified Covarrubias in a photo "throwing up a Euclid gang sign." The brother also acknowledged that asking someone where they are from can be considered a gang challenge.
A friend of Villalpando's family testified Villalpando beat him with a baseball bat over a dispute about an allegedly defective car sound system the friend installed in Villalpando's car.
Several law enforcement witnesses testified about prior contacts with Villalpando, which records indicated may have been for gang-related activities. However, the officers had no independent recollection of the contacts, and Villalpando's gang connection, if any, was to the Del Sol or Ysidro gangs, not Euclid Street or East San Diego.
Jury Verdict and Sentencing
The jury found Covarrubias guilty of first degree murder (Pen. Code, § 187, subd. (a)), and found true the allegation that he personally discharged a firearm that caused the death of another person (§ 12022.53, subd. (d)). The trial court sentenced him to 50 years to life in prison, consisting of consecutive terms of 25 years to life on both the conviction and the enhancement.
Statutory references are to the Penal Code unless otherwise noted.
Covarrubias appeals.
DISCUSSION
I. Admission of M.R.'s Identification of Covarrubias
Covarrubias contends the trial court erred by admitting evidence showing that in a 2014 interview with investigators, M.R. identified him as the shooter in still shots taken from the donut shop security footage. Covarrubias objected below that the evidence was irrelevant, or unduly prejudicial under Evidence Code section 352, because the photos were of poor quality, M.R.'s identification was too equivocal, and investigators improperly pressured her to identify Covarrubias by telling her he was involved in another homicide (the 2001 incident).
The interview was recorded, but the recording was not played for the jury.
Evidence Code section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
On appeal, Covarrubias abandons the relevance challenge, maintains the undue-prejudice challenge, and adds misleading-the-jury (Evid. Code, § 352) and due process challenges. He asserts the jury was misled because he was unable to explain the degree to which investigators pressured M.R. because doing so would have required him to introduce evidence about the 2001 homicide, which he successfully excluded by way of a motion in limine. And he asserts his due process rights were violated because the investigators' allegedly suggestive conduct during the interview created a substantial likelihood of misidentification under the multi-factor analysis applied in cases involving identifications by eyewitnesses to crimes.
The Attorney General contends Covarrubias has preserved for appeal only those specific challenges he asserted below (relevance and undue prejudice), and has forfeited the rest (misleading the jury and due process). On the merits, the Attorney General contends the trial court properly admitted evidence of M.R.'s identification of Covarrubias.
As we will explain, the only issues Covarrubias asserts on appeal that he effectively preserved below are (1) his undue-prejudice claim under Evidence Code section 352, and (2) the related, derivative claim that this alleged evidentiary error "had the additional legal consequence of violating due process." (See People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).)
As we will also explain, we conclude on the merits that the trial court did not abuse its discretion in overruling Covarrubias's undue-prejudice objection under Evidence Code section 352. Consequently, his derivative due process claim also fails. (See People v. Rocha (2013) 221 Cal.App.4th 1385, 1400 (Rocha) [derivative due process claim "cannot come into play unless the Evidence Code section 352 objection was overruled in error"], italics added.)
A. Background
1. Covarrubias's Objection
The prosecutor's trial brief indicated M.R. would testify that when investigators showed her the surveillance footage from the donut shop, M.R. "became visibly shaken," "pointed to one of the figures," and said, " 'That guy in the hat looks a lot like Santiago [Covarrubias]."
During trial, the day before M.R. was expected to testify, defense counsel informed the court "[t]here's some areas that [the prosecutor] wants to get into with her that I would like to lodge some objection." She explained her relevance and undue-prejudice theories as follows:
"They want to bring in an identification of Mr. Covarrubias. So basically from the video that you've seen, they showed her still frames, and it's very poor quality video.
"There's an interview where things about the 2001 homicide are brought up. And basically, she's told very negative things about Mr. Covarrubias and then shown a photograph and then says I know
who—that looks like—and they say, who does it look like? She says, Mr. Covarrubias, but I don't remember him being that heavy. He always wore glasses, and you can't really see the guy's face. Then the detectives start telling her, Well, what if I could tell you a hundred percent this is Martin Villalpando right here. Who would that be with him? And they really push her to try to make an identification.
"What I'm concerned about, she's not a witness in this case, so they're asking her to make what is going to be used by the jury as an eyewitness identification, when they're asking her to view blurry photographs from the still frames of the video. So I don't think that moves the ball in this case. I don't think that is relevant. . . . I would also be objecting on 352. If it does have marginal relevance, it's—given the undue weight that eyewitness identifications are given by a jury, I think it would be very, very prejudicial."
The trial court overruled the objection, explaining the jury would have all the relevant information to weigh:
"As far as that is concerned, I would be inclined to let her testify to that. I mean, a person can, even on a foggy picture, or a blurry picture, a person who knows that picture[] can more accurately identify someone. She's subject to cross-examination, so I think everything you said goes to the weight, not admissibility. So I would be inclined to allow her to testify to that. I'm not sure she's going to say that now or not, but I would be inclined to allow [the prosecutor] to put that in, that she did previously identify him and, of course, it's subject to cross and everything you pointed out. But I think that's relevant."
It seems the trial court meant to say "person" instead of "picture."
2. M.R.'s Testimony
The prosecutor called M.R. in his case-in-chief. She said she dated Covarrubias from 2004 to 2010. During that time, they lived near each other, and near the taco shop. In their neighborhood, being "a snitch" was "frowned upon." In 2007, Covarrubias did not have a goatee (as D.B. described); he had a "chin strap" beard that followed his jawline (as the donut shop employee described), and a moustache. He also "[m]ostly" wore glasses, though M.R. acknowledged he was not wearing glasses in several photos that had been admitted as trial exhibits.
Based on Covarrubias's lifestyle, M.R. "assumed he sold drugs." She knew he had been a member of the Euclid "clique," and his friends called him "Stormy." M.R. believed Euclid "didn't get along" with the East San Diego gang.
The prosecutor questioned M.R. about some of the still shots from the donut shop security footage, which investigators had shown her during an interview in 2014. M.R. said she did not recognize anyone in the photos. The prosecutor then questioned M.R. extensively regarding the interview with investigators:
"Q . . . Do you recall being told by the officers, 'If you were told 100 percent that this person here was Martin Villalpando, who did you think the other person would be?'
"A Santiago.
"Q Why did you say that?
"A Because the detective led me to believe that.
"Q How did the detective lead you to believe that?
"A The things he was saying prior to showing me these pictures. [¶] . . . [¶]
"Q Okay. Do you recall, when you were shown these pictures, becoming visibly shaken?
"A I was upset, yes.
"Q Why were you upset?
"A Because I was being questioned and shown pictures of somebody that I loved very much and he's being accused of killing somebody.
"Q Okay. And you looked at the picture. Correct?
"A I did.
"Q And did you believe that the picture looked like Santiago Covarrubias, the person on the left?
"A I believed after, like I said, she was telling me that it was him.
"Q And you believed it, based on just because she was telling you it was him?
"A Yes.
"Q Do you recall her telling you, 'suppose I can absolutely prove the other guy is, in fact, Martin, is there anyone else that looks like Martin that would be out with—that he would be out with? If that was a hundred percent Martin?'
"A I remember her asking that, yes.
"Q Do you recall what your response was to that?
"A No. I think—well, hold on. I think I did say—I don't think that would be him. But now that you're telling me that this is him, then I do believe that.
"Q Do you recall telling the detectives that, 'I don't know who that looks like, but I know who that looks like,' pointing at the suspects in the photo, when you were pointing at the suspects in the photo. The guy in the hat looks like Santiago. I mean, it's blurry, and Santiago wears glasses.
"A I said, 'You're showing me a picture of a guy that you want me to believe is Santiago.'
"Q Did you believe?
"A Pointing at this—at the person closest to the window.
"Q Do you recall saying, 'I said it looks like Santiago, but I said I don't remember him being that heavy. I can't really see his face, and I know he wears glasses'?
"A I could have said that, yes.
"Q Okay. And [they] asked you, 'What does your gut tell you?' Correct?
"A Yes.
"Q And you said, 'The obvious, that's him, because . . . I know him to be a bad person'? [¶] . . . [¶]
"A No. What I said is, 'I don't believe that he was capable or is capable of doing something like this. But now that you guys are telling me this, then I believe he's a bad person.' "
On cross-examination by defense counsel, M.R. testified the investigators told her in advance they were investigating a murder, and the only names they ever mentioned were Covarrubias's and Villalpando's. She "felt pressured to say that it looked like Santiago [Covarrubias], or who else could it be." M.R. reiterated she had told the investigators that there were differences between Covarrubias and the man in the photo wearing a hat, but the investigators "kept pressing [her] further."
M.R. also testified on cross-examination about Covarrubias's appearance in 2007. He did not have a shaved head then, and his chin strap beard was not common for the neighborhood, but goatees and diamond earrings were. M.R. said she used to pick out Covarrubias's clothes in 2007, and she did not dress him in baggy clothes like those the shooter was wearing.
On redirect, M.R. testified about the circumstances of her 2014 interview with the investigators:
"Q . . . When those detectives met you, it was at your house in San Francisco, right?
"A Yes.
"Q You weren't under arrest or anything?
"A No.
"Q No lights on you, grilling you or anything?
"A No.
"Q Okay. What was the general feeling of the interview? Did you feel pressured?
"A A little bit."
M.R. also acknowledged telling the investigators Covarrubias "was smart about the way he did business, he made sure not [t]o have anything illegal in the car in case he got pulled over." She also said it would surprise her to learn that—as the parties stipulated—in 2001 "Covarrubias told an employee at a nightclub that he was from East Side Euclid." M.R. also clarified that during the time she claimed to dress Covarrubias, they did not live together and he was dating "[m]any women."
3. Detective Adams's Testimony
Detective Adams also testified about M.R.'s 2014 interview. Adams explained she initially spoke with M.R. by phone to schedule an interview "a couple weeks" later at M.R.'s home in San Francisco. M.R. was "pleasant" on the phone.
Investigator Johnson attended the interview with Detective Adams. When they arrived at M.R.'s home, she was "[v]ery pleasant" and "cordial," invited them inside, and offered them water. M.R. "did not indicate" to Adams that she was "under pressure or stress or anything." The interview lasted about one hour.
When Detective Adams asked M.R. about Covarrubias's background, M.R. said without hesitation that Covarrubias sold drugs. M.R. also said Covarrubias was a Euclid Street gang member "[a]t one point in his life," and explained that Euclid Street and East Side "had to become one" to resolve "some prison issues."
About a half hour into the conversation, Detective Adams brought up the 2007 murder. Adams told M.R. she "wanted to show her some photographs of individuals in this case," and presented five still shots from the donut shop security footage. As Adams was explaining the cameras' orientations, M.R. "pointed to a picture and said, [']I don't know who that is, but I know who that is.' " Adams asked M.R. to clarify and, after a "couple seconds," M.R. indicated the person in the hat "looks like Santiago." Adams had not told M.R. that Covarrubias was in any of the photos, but had mentioned that he and Villalpando were "individuals associated with the case."
As M.R. looked at the photos, she was visibly upset—she had "a little bit of tears in her eyes, [was] taking deep breaths and she just looked a little shaken." Detective Adams asked what about the photo looked like Covarrubias, and M.R. responded, "the dark face." M.R. said she was "trying to remember when [Covarrubias] stopped wearing bagg[y] clothes."
M.R. was unable to identify the other person in the photo. Investigator Johnson asked, "Well, if I told you that person in the striped shirt was, in fact, Martin Villalpando, who do you think the other person would be?" M.R. responded, "Santiago," "[b]ecause that's who Martin would be with" in that part of town.
On cross-examination, Detective Adams acknowledged that when she contacted M.R. by phone to set up the interview, she (Adams) introduced herself as a homicide detective investigating a cold case and she wanted to speak with M.R. about Covarrubias. Defense counsel elicited from Adams that after M.R. identified Covarrubias, she (M.R.) added that the photo was blurry, that "she didn't ever remember Santiago being that heavy," and asked whether the person in the hat was wearing glasses "[b]ecause Santiago usually wears glasses." Regarding the question assuming the other person in the photo was Villalpando, Adams acknowledged she had "no idea" about the extent of M.R.'s knowledge of Villalpando's other friends. In reference to M.R. identifying Covarrubias in the photo due to the person having a dark face, Adams acknowledged eyewitnesses described the shooter as being "light-skinned." Adams said the conversation about the photos lasted six or seven minutes.
When defense counsel asked Detective Adams if she agreed "that police officers in a person's house might make them uncomfortable," Adams responded, "There are some people that feel uncomfortable, but [M.R.] didn't give me any indication at all."
On redirect, Detective Adams said she listened to a tape of the interview after M.R. testified so she (Adams) would be "clear on what was said in the interview" and to determine whether M.R. "appeared to be . . . under any stress or anything." Adams confirmed the recording indicated M.R. "seemed comfortable and there [were] moments where we would chuckle."
Finally, the prosecutor asked Detective Adams about the significance of M.R.'s testimony:
"Q [M.R.] gave you information that tied Santiago Covarrubias into this crime, did she not?
"A Correct. By identifying Martin as a friend, it was important. And then by her looking at the photos and her reaction, I found important.
"Q And she also told you that the person in the picture looked like Santiago Covarrubias, correct?
"A Correct."
B. Relevant Legal Principles
As the California Supreme Court recently observed, "Court of Appeal decisions have long upheld admission of testimony identifying defendants in surveillance footage or photographs." (People v. Leon (2015) 61 Cal.4th 569, 601.) The court discussed two examples:
"In [People v. Perry (1976) 60 Cal.App.3d 608 (Perry)], the defendant argued an identification had to be based on the officer's perception of a crime. (Perry, supra, 60 Cal.App.3d at p. 613.) The court disagreed, finding it proper for officers to predicate their opinion on 'contacts with defendant, their awareness of his physical characteristics on the day of the robbery, and their perception of the film taken of the events.' (Ibid.) The testimony was also helpful because the defendant had changed his appearance by shaving his mustache before trial. (Ibid.) Similarly, the court in [People v. Mixon (1982) 129 Cal.App.3d 118 (Mixon)] upheld identification of the defendant in a robbery surveillance photograph by officers who had numerous contacts with him and were unequivocal in their identification. (Mixon, supra, 129 Cal.App.3d at pp. 130-131; see
People v. Ingle (1986) 178 Cal.App.3d 505, 514 . . . [allowing similar testimony by robbery victim based on her observation of defendant during the crime].)" (Leon, supra, 61 Cal.4th at p. 601.)
Evidence Code section 352 grants trial courts the discretion to exclude otherwise admissible evidence where the evidence's "probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "The trial court enjoys broad discretion in determining the relevance of evidence and in assessing whether concerns of undue prejudice, confusion, or consumption of time substantially outweigh the probative value of particular evidence." (People v. Clark (2016) 63 Cal.4th 522, 572.) " 'The exercise of discretion is not grounds for reversal unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (Ibid.)
C. Analysis
1. Forfeiture
We begin by determining the scope of issues preserved for appeal. "To preserve a claim that a trial court abused its discretion in not excluding evidence under Evidence Code section 352, 'a party must make a timely and specific objection when the evidence is offered.' " (People v. Harrison (2005) 35 Cal.4th 208, 230, italics added.) As to specificity, the California Supreme Court has explained:
"What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. If the
court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (Partida, supra, 37 Cal.4th at p. 435; see People v. Brooks (2017) 3 Cal.5th 1, 42; Evid. Code, § 353, subd. (a) [no reversal based on erroneously admitted evidence unless the defendant made a timely objection that "make[s] clear the specific ground of the objection or motion"].)
At trial, Covarrubias objected to M.R.'s identification evidence on relevance and undue-prejudice grounds: "I don't think that is relevant. . . . I would also be objecting on 352. If it does have marginal relevance, it's—given the undue weight that eyewitness identifications are given by a jury, I think it would be very, very prejudicial." This was sufficient to preserve Covarrubias's undue-prejudice challenge, but not his new misleading-the-jury and due process challenges.
Specifically, Covarrubias now argues M.R.'s identification evidence was likely to mislead the jury because, on one hand, it was procured by Detective Adams "telling [M.R. that Covarrubias] had been involved in another murder, causing her to believe [he] was a 'bad person' " (fn. omitted); yet, on the other hand, Covarrubias "could not cross-examine [M.R.] on the suggestive pressure of being told [Covarrubias] was a suspect in two murders without also introducing unduly prejudicial evidence of the uncharged homicide." Covarrubias's trial court objections (relevance and undue-prejudice) made no mention of any other balancing factor under Evidence Code section 352 (undue consumption of time, confusing the issues, or misleading the jury) and, thus, did not "fairly inform" (Partida, supra, 37 Cal.4th at p. 435) the court or the prosecutor of this evidentiary conundrum of Covarrubias's own making. That is, it was Covarrubias who successfully moved to exclude the evidence he now claims was necessary for an effective cross-examination. Had Covarrubias brought this issue to the trial court's attention, the court would have had the opportunity to consider whether it had struck an appropriate balance between excluding evidence of Covarrubias's uncharged homicide and allowing Covarrubias to sufficiently cross-examine M.R. regarding the information Detective Adams revealed during their interview. But because Covarrubias deprived the trial court (and the prosecutor) of this opportunity, he has forfeited this challenge on appeal.
Covarrubias's undue-prejudice objection under Evidence Code section 352 was also insufficient to preserve his newly asserted due process challenge. Where, as here, a defendant asserts an objection at trial under Evidence Code section 352 but fails to assert a due process objection, "that defendant may make a very narrow due process argument on appeal. He may argue that the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process." (Partida, supra, 37 Cal.4th at p. 435.) But, "[t]o the extent . . . that defendant may be understood to argue that due process required exclusion of the evidence for a reason different from his trial objection, that claim is forfeited." (Id. at p. 436; see Rocha, supra, 221 Cal.App.4th at p. 1400.) Consequently, "if a defendant who objected on Evidence Code section 352 grounds argues on appeal that the court erred in admitting the evidence for a reason different than that it was more prejudicial than probative, an additional trial invocation of due process or some other general principle that did not reasonably apprise the trial court of the analysis it was being asked to undertake would not be sufficient to preserve the argument." (Partida, at p. 437.)
Covarrubias made no "additional trial invocation of due process" (Partida, supra, 37 Cal.4th at p. 437) beyond his undue-prejudice objection under Evidence Code section 352. Thus, his due process challenge on appeal is limited to arguing that the trial court's alleged evidentiary error under the undue-prejudice prong of Evidence Code section 352 "had the additional legal consequences of violating due process." (Partida, at p. 435.)
Covarrubias nonetheless maintains he preserved a broader due process challenge because it is based on "the same reasons defense counsel cited for excluding the identification based on Evidence Code section 352." We disagree. Whereas the undue-prejudice objection asked the trial court to weigh, generally, whether the probative value of M.R.'s identification "is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice" (Evid. Code, § 352), the due process challenge he now asks us to undertake in the first instance involves a fact-intensive consideration of multiple factors relevant to eyewitness identifications typically made by witnesses who "must testify about an encounter with a total stranger under circumstances of emergency or emotional stress." (Manson v. Brathwaite (1977) 432 U.S. 98, 112 (Brathwaite).) The fact Covarrubias acknowledges several of these factors are inapplicable in the context of this case—which involves a witness who knew the defendant well and identified him from the comfort and safety of her home halfway across the state—indicates the analysis is not as straightforward or analogous to Evidence Code section 352 as Covarrubias now suggests. At a minimum, it is not analogous enough that the trial court should fairly have construed Covarrubias's undue-prejudice objection as invoking a separate and admittedly shoehorned body of law.
The factors enumerated in Brathwaite "include the opportunity of the witness to view the criminal at the time of the crime, the witness'[s] degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." (Brathwaite, supra, 432 U.S. at p. 114.)
2. No Abuse of Discretion Under Evidence Code Section 352
Turning to the merits, we find no abuse of discretion in the trial court's conclusion that M.R.'s equivocation in her identification of Covarrubias and the circumstances of her interview went to the testimony's weight, not its admissibility.
The parties and the trial court agreed the identity of the shooter was the critical issue at trial. Thus, evidence bearing on that point—like M.R.'s identification of Covarrubias—was relevant. (See Evid. Code, § 210 [" 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."].) Indeed, as Detective Adams explained, it was highly probative because it linked Covarrubias to Villalpando and to the security footage of the crime.
Covarrubias contends M.R.'s identification lacks probative value because it was "unhelpful" to the jury in light of the poor quality of the security footage and M.R.'s equivocal identification. To the contrary, M.R.'s testimony was all the more helpful to the jury in light of the poor photo quality. (See, e.g., People v. Ingle (1986) 178 Cal.App.3d 505, 514 [where "the quality of [surveillance] videotape was not sufficient to establish [the defendant's] identity conclusively," it was "entirely appropriate" for the victim to give opinion testimony "that the person portrayed as the robber in the videotape was the defendant"].)
M.R.'s testimony was also helpful because she was familiar with Covarrubias's appearance in 2007, and his appearance had changed in the intervening 10 years between the murder and the trial. (See, e.g., Perry, supra, 60 Cal.App.3d at p. 613 [where the defendant altered his appearance between arrest and trial, identification witnesses "were able to apply their knowledge of his prior appearance to the subject in the film. Such perception and knowledge was not available directly to the jury."]; Mixon, supra, 129 Cal.App.3d at p. 131 [where the defendant altered his appearance between arrest and trial, "[h]is appearance at the time of the robbery was . . . more consonant with the [witnesses'] prior perception than it was with his appearance at trial"].)
As to the equivocal nature of M.R.'s identification of Covarrubias, we agree with the trial court that this was primarily an issue of weight rather than admissibility. (See People v. Gonzales (1968) 68 Cal.2d 467, 472 [in substantial evidence context, "[l]ack of positiveness" as to identity "went to the weight and not to the competency of the evidence"]; People v. Jones (1963) 221 Cal.App.2d 408, 409 [in substantial evidence context, the "strength or weakness of identification is a matter solely within the province of the jury," and a "jury's determination must be upheld unless the evidence of identification is inherently improbable or incredible as a matter of law"].) Moreover, defense counsel ably alerted the jury to inconsistencies between M.R.'s identification and the subject in the photos (e.g., potential weight difference and presence or absence of eyeglasses). The jury was able to test M.R.'s testimony because the photos she viewed were admitted as trial exhibits. (See People v. Larkins (2011) 199 Cal.App.4th 1059, 1068.) Indeed, it appears the jury carefully undertook this analysis because, during deliberation, the jury requested and received a readback of M.R.'s and Detective Adams's testimony.
Covarrubias also contends the suggestive circumstances of M.R.'s interview lessened the probative value of her identification of him. In this respect, he primarily cites his inability to sufficiently cross-examine M.R. regarding the 2001 homicide. As noted, however, Covarrubias forfeited this issue by failing to raise it below. In addition, more generally, the jury heard extensively from M.R. and Detective Adams about the circumstances of the interview and the alleged pressure. And although the jury did not learn the specific nature of the information Adams revealed to M.R., the jury learned it was significant enough to change M.R.'s opinion of Covarrubias's character.
In sum, the trial court did not abuse its discretion in concluding the probative value of M.R.'s identification of Covarrubias was not substantially outweighed by the risk of undue prejudice. Consequently, Covarrubias's derivative due process challenge also fails. (See Rocha, supra, 221 Cal.App.4th at p. 1400.)
II. Corroboration of Accomplice Testimony
Covarrubias contends Villalpando's accomplice testimony was insufficiently corroborated because the "description[s] of the shooter by eyewitnesses were too generic," and M.R.'s identification "resulted from a suggestive police interview" and "was too equivocal and unreliable." (See § 1111 [an accomplice's testimony must be corroborated by independent evidence tending to connect the defendant to the commission of the charged offense].) We disagree.
A. Background
Villalpando testified at trial and described the crime largely as described in our factual summary.
Covarrubias and Green's conversation on the night of the shooting started friendly, but turned serious. Villalpando did not remember anyone talking about gang challenges, but he remembered Green possibly asking Covarrubias if he had any drugs. Covarrubias became upset with Green, and wanted to leave.
Covarrubias and Villalpando drove to Covarrubias's house a few blocks away. During the drive, Covarrubias said "he felt disrespected." At Covarrubias's house, Villalpando drank alcohol in the kitchen while Covarrubias went to another room, presumably to get drugs to sell to Green. The two men then walked back to the taco shop.
Back at the shopping center, Green emerged from the donut shop and spoke to Covarrubias. Covarrubias pulled out a gun and shot toward Green's legs. Covarrubias and Villalpando then ran back to Covarrubias's house. Villalpando testified he had never seen the murder weapon before, and he did not know what happened to it after the murder.
Villalpando testified he did not recognize anyone in several of the still shots from the donut shop security footage, but from his memory of the events he was able to identify Covarrubias as the shooter and himself as the other person.
Villalpando denied ever being in any gang, but said he had friends and relatives in the Del Sol and Ysidro gangs. He knew M.R. through Covarrubias, and considered her a friend. Indeed, M.R. warned Villalpando about a month before his arrest that he was going to be arrested.
Villalpando explained at trial that he, alone, was initially arrested and charged with first degree murder, and was facing the potential of life in prison. Under his plea deal, he could potentially be granted probation and released with time served. Villalpando acknowledged he had consulted the prosecution discovery file, which mentioned Covarrubias (and others) as possible accomplices, before agreeing to cooperate with the prosecution.
Villalpando's sentencing was deferred until after he testified in this case.
Regarding his appearance, Villalpando testified he used to have crooked teeth, but got them straightened with braces sometime after 2007.
B. Relevant Legal Principles
"The law requiring corroboration of accomplice testimony is well established." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128 (Rodrigues).) Section 1111 provides in part: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."
" ' "Corroborating evidence 'must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.' [Citation.]" ' " (Rodrigues, supra, 8 Cal.4th at p. 1128.) "[F]or the jury to rely on an accomplice's testimony about the circumstances of an offense, it must find evidence that ' "without aid from the accomplice's testimony, tend[s] to connect the defendant with the crime." ' " (People v. Romero and Self (2015) 62 Cal.4th 1, 32 (Romero).)
" ' "Corroborating evidence may be slight, entirely circumstantial, and entitled to little consideration when standing alone. [Citations.] It need not be sufficient to establish every element of the charged offense or to establish the precise facts to which the accomplice testified." ' " (People v. Anderson (2018) 5 Cal.5th 372, 411 (Anderson).) Nor must it " 'independently establish the identity of the victim's assailant.' " (Romero, supra, 62 Cal.4th at p. 32.) " ' "It is 'sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' " ' " (Anderson, at p. 411.)
" 'The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.' " (Romero, supra, 62 Cal.4th at pp. 32-33.)
C. Analysis
Substantial evidence corroborates Villalpando's testimony that Covarrubias shot Green. D.B.'s description of the conversation that precipitated the shooting corroborated Villalpando's description of it. M.R.'s testimony and various records established Covarrubias lived near the crime scene, and M.R. also testified Covarrubias was smart about not keeping contraband in his car, all of which corroborated Villalpando's claim that Covarrubias retrieved the murder weapon from his nearby home. M.R.'s identification of Covarrubias as the shooter in the still shots of the donut shop security footage corroborated Villalpando's testimony that Covarrubias shot Green. Eyewitness testimony and security camera footage indicate the suspects ran north after the shooting, which corroborates Villalpando's testimony that he and Covarrubias fled on foot to Covarrubias's house after the shooting. This is more than slight evidence tending to connect Covarrubias to the crime.
Covarrubias contends M.R.'s identification of him "was too equivocal and unreliable to act as corroborating evidence." However, because we have already concluded the trial court properly admitted M.R.'s identification evidence, the jury was entitled to determine what weight to give it. (See In re Corey (1964) 230 Cal.App.2d 813, 825-826 ["The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, the uncertainty of recollection, and the qualification of identity and lack of positiveness in testimony are matters which go to the weight of the evidence and the credibility of the witnesses and are for the observation and consideration of the trier of fact, whose determination will stand unless the testimony is inherently incredible."]; People v. Holt (1972) 28 Cal.App.3d 343, 354 ["[T]o sustain a conviction the identification of the accused need not be positive. Testimony that a defendant resembles the robber suffices . . . ."], italics added.)
Covarrubias also contends the eyewitness descriptions of the perpetrators were "too generic to act as corroboration." For example, many witnesses described the perpetrators as being about 5' 7" or 5' 8" tall and in their early 20's, whereas Covarrubias and Villalpando were about 6' ¼" and 5' 11½" tall and ages 32 and 27, respectively. These discrepancies are not dispositive. Villalpando's DNA and crooked teeth (as described by D.B.) undisputedly put him at the crime scene. And although D.B. was wrong about the suspects' absolute heights, he was correct about their relative heights compared to one another ("approximately the same height"). In addition, D.B.'s inaccurate absolute height estimate may be explained by the fact he never had the opportunity to compare the perpetrators' heights to his because he never stood next to them. Further, the taco shop employee gave conflicting accounts of whether he was ever "in a position where [he] could see how tall they were."
Likewise, although witnesses estimated the suspects were in their early 20's, Villalpando—who undisputedly was at the scene—was, in fact, in his late 20's. Jurors were able to determine from photos admitted as trial exhibits whether the men appeared youthful for their ages.
Covarrubias argues at length that certain "generic details about the shooter's identity"—e.g., Hispanic, male, father, drug dealer, gang member, shaved head, facial hair, and one or more diamond earrings—are "not substantial evidence of identity and [are] therefore not corroborative." However, he admits he "could find no cases specifically addressing generic appearance testimony and accomplice corroboration" to support his argument. Instead, he analogizes to a single case addressing the degree of similarity required to establish identity for purposes of admitting evidence of uncharged acts under Evidence Code section 1101. (See People v. Williams (2017) 7 Cal.App.5th 644, 674-675 [Black robbery suspects driving a tan or gold Toyota Camry not sufficiently distinct].) The analogy is inapt. Under Evidence Code section 1101, "[t]he greatest degree of similarity is required . . . to prove identity." (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) Corroboration evidence, on the other hand, " ' "may be slight, entirely circumstantial, and entitled to little consideration when standing alone." ' " (Anderson, supra, 5 Cal.5th at p. 411.)
In any event, we need not determine whether the shooter's traits are too generic to corroborate Villalpando's testimony because we find his testimony was already sufficiently corroborated by the other evidence discussed above.
III. Admission of Detective Adams's Opinions Regarding the Composite Sketch
Covarrubias contends the trial court erred by allowing Detective Adams to testify that she saw similarities between, on one hand, the composite sketch of the shooter, and, on the other hand, D.B.'s description of the shooter and the reference photos of Covarrubias that Adams retrieved as part of her investigation. Covarrubias reasons the testimony was inadmissible as lay opinion testimony because, although it was "facially helpful, in that it explained why Adams had included [Covarrubias] in her investigation," it was legally unhelpful because "Adams'[s] reason for investigating [Covarrubias] is not relevant to a trial on his guilt."
The Attorney General counters that Detective Adams's motivations were relevant to rebut the defense theory "of an improper investigation that wrongly focused on [Covarrubias] to the exclusion of others." In support, the Attorney General quotes from defense counsel's closing argument: " 'They think he fits the general description. Oh, he lives in the area. And, bam, he's their suspect. And they go with blinders on and tunnel vision and they never look back.' "
In reply, Covarrubias rejects the contention he "opened the door to this evidence" because Detective Adams raised it on direct examination, and "[d]efense counsel's later argument in closing has no bearing on the admissibility of the evidence in the prosecution's case-in-chief."
We find no abuse of discretion in the trial court's admission of Detective Adams's testimony. Although the Attorney General's cited example of the defense strategy is from defense counsel's closing argument, the record makes clear that this strategy was known from the outset of the case. Indeed, in arguing the motion in limine regarding exclusion of Covarrubias' 2001 homicide, the prosecutor explained that defense counsel alluded to the defense as early as the preliminary hearing:
"One of the issues where I see this becoming a problem is, in reading the transcript of the prelim, is one of the things the defense really harped on was 'You got Covarrubias, and you quit. You quit. You quit. You quit. You quit investigating everybody else that was—they basically had their blinders on. They're going after him.' The problem here is, while this was going on, Mr. Covarrubias is being prosecuted for that case. So that is something that came into the
defense, which—because it went to the identity once again. They've got a guy who, in their belief, matches the description, doesn't match the description of Villalpando as they're watching it, and they're doing all this work, and the defense is harping on[,] 'Well, you didn't do anything else. You didn't do anything else.' Well, they did have a big piece of evidence that he was involved in, for their purposes, obviously, a very similar crime with very similar circumstances in the problem.
"So I see the issue being that the defense is going to go down that road at trial. They're going to open that can of worms with the defendant—with the detectives when they ask them, you know, 'You didn't do anything else.' 'Well, we had more.' And she didn't say it in the preliminary hearing, which I noticed in the hearing, but I believe that's a direction she would go, and I think that would be a fair assumption to make under those circumstances, that that's a fair answer, if that's where she's going. So I don't know if there's going to be some ruling as far as—if this evidence isn't allowed in, it's definitely going to the state of mind of the investigators and what was in their minds and their processes as they were investigating for this crime."
Opening statements were not transcribed, so we are unable to confirm whether defense counsel raised this defense in opening. But, as the Attorney General points out, defense counsel clearly raised it in closing argument. Moreover, Detective Adams testified without objection on direct examination about other suspects she considered and ruled out over the years she conducted her investigation. It was not unreasonable for her to provide the jury with the context surrounding her years-long investigation.
Under these circumstances, it was not an abuse of discretion for the trial court to allow the prosecution to rebut a reasonably anticipated defense that, at a minimum, had been previewed as early as the preliminary hearing.
IV. Sentencing Issues
Covarrubias raises two sentencing issues on appeal. First, he contends the abstract of judgment incorrectly reflects the sentence the trial court actually imposed. Second, he contends we should remand the matter for resentencing in light of intervening authority that now allows the trial court to exercise discretion with respect to striking the firearm enhancement. The Attorney General concedes Covarrubias "is correct on both accounts." We agree on both accounts. Accordingly, we vacate the sentence and remand for resentencing.
Whereas the court orally sentenced Covarrubias to a total term of 50 years to life (consisting of consecutive terms of 25 years to life on both the conviction and the enhancement), the abstract of judgment reflects a total term of 75 years to life (consisting of consecutive terms of 50 years to life on the conviction and 25 years to life on the enhancement).
When the trial court sentenced Covarrubias, the firearm enhancement in section 12022.53, subdivision (h) prohibited the trial court from striking the enhancement. (Former § 12022.53, subd. (h) ["the court shall not strike an allegation under this section"], italics added.) The Legislature has since amended this subdivision so that now "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h), italics added.) The current iteration further provides, "The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Ibid.) Our court has held that this amendment applies retroactively to all nonfinal convictions. (See People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507.) Accordingly, on remand, the trial court must exercise its newly vested discretion under section 12022.53, subdivision (h) to determine whether to strike the enhancement under section 12022.53, subdivision (d). We express no opinion on how the trial court should exercise its discretion in this regard.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing. The trial court is directed to exercise its discretion under section 12022.53, subdivision (h) to determine whether to strike the firearm enhancement under section 12022.53, subdivision (d). Upon resentencing, the trial court is directed to issue a new abstract of judgment and to forward it to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
HALLER, J. WE CONCUR:
NARES, Acting P. J.
GUERRERO, J.