Opinion
A150485
10-24-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW GATES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR308890)
Andrew Gates was convicted of attacking a woman jogging near his home. The trial court admitted evidence of a separate incident to prove intent, common plan, and identity. We conclude the latter evidence was not probative of intent or conduct pursuant to a common plan, and it was insufficiently similar to the charged crimes to prove identity. We find the error prejudicial and consequently reverse.
I. BACKGROUND
Gates was charged by information with attempted second degree robbery (Pen. Code, §§ 211, 664; count 1) and sexual battery (id., § 243.4, subd. (e)(1); count 3) of D.L. on July 19, 2014. The following evidence was presented at trial. A. Charged Offense Against D.L.
Gates was also charged with criminal threats and battery against D.L. (Pen. Code, §§ 422, 242; counts 2 & 4). Those counts were dismissed before trial.
Around 4:00 a.m. on July 19, 2014, D.L. started an 18-mile run through largely residential areas of Fairfield. During her first and second six-mile loops, she saw a gold sedan drive by slowly even though there was no traffic. The car had a fin or spoiler on the rear. About 6:30 a.m., as D.L. finished her second six-mile loop, she heard a noise behind her, turned around, and saw a man run up behind her. The man passed her, turned, and tackled her to the ground, straddled her and pinned one of her arms under his knee. He choked her, swore ("F'ing B"), and demanded her iPod or iPhone. D.L. motioned toward her shorts pocket where she kept her MP3 player, and the man slid his body down. He then looked around him, put his hand between her legs, and rubbed back and forth by her vagina. She screamed, and he punched her hard in the head two or three times. When he jumped off of her, the MP3 player fell from her pocket. Apparently realizing it was not valuable, he ran off without it, saying, "I'm gonna come and get you with my niggers."
D.L. went home and called 911. She told a responding officer the perpetrator was a clean-cut Hispanic or White male, 5 feet 10 inches tall, weighing about 180 pounds, and 18 to 25 years old. She said he wore a dark hooded sweatshirt with the hood up, dark shorts, and possibly dark tennis shoes. D.L. was unsure if she could identify him because the hood had partially covered his face.
In an interview two days after the incident, D.L. told Fairfield Police Detective Joseph Perry the perpetrator was White or light Hispanic, stocky or muscular, with a thick mustache and square jaw. At trial, D.L. testified the perpetrator had a wispy mustache with dark hair. She believed the car involved was a Pontiac with a rear spoiler or "fin" on the back. D.L. was later shown a photographic lineup. After twice viewing six photographs sequentially, she identified a photograph of Gates as looking most like the perpetrator. At trial, D.L. identified Gates, saying she was "sure it's him" and that she was "absolutely positive" he was the perpetrator. She was not asked to identify Gates's car.
Gates is a 5-foot-10-inch tall White male with green eyes. He was 23 years old in July 2014. In a July 24, 2014 booking photograph, he had no mustache but had a "pencil-line beard or five o'clock shadow." Gates was a registered owner of a gold Ford Taurus sedan. The car had a dent and no spoiler. In July 2014, Gates lived with his grandmother in Fairfield about three miles from where D.L. was attacked.
Floyd Vargas, Gates's neighbor, testified that in 2014 he habitually scanned the neighborhood for unfamiliar cars when he went outside to prepare for work each morning, Monday through Saturday. He would go outside about 5:45 a.m. to warm up his vehicle, load it, and leave around 6:15 a.m. Vargas was certain he saw Gates's car parked in the neighborhood on the morning of Saturday, July 19, 2014. He knew Gates had been charged with a crime involving his car; he was friendly with Gates and performed yard work for Gates's grandmother. Vargas spoke to a defense investigator in December 2015, but he did not talk to police or the district attorney. B. Uncharged Acts Involving C.M.
At about 7:30 a.m. on June 27, 2014 (about three weeks before the D.L. incident), C.M. was walking her dog through a residential area of Fairfield about two miles driving distance from Gates's home. C.M. was not wearing headphones that morning. A "goldish" older-model sedan similar to a Ford Taurus drove by slowly, and the driver shouted something like "west side bitch" in her direction and made hand gestures she did not recognize. A few blocks later, the same man jumped out from bushes in front of her. He seemed angry, and she thought he said "west side bitch" again. C.M. ran across the street, hid in someone's yard, and called 911. The man followed close behind but stopped in the middle of the street, then turned and left. C.M. ran home while on the phone with police. On her way home, she saw the man drive by her again very slowly. She gave the dispatcher a partial vehicle license plate number, including "4R" at the beginning and "33" or two consecutive numbers at the end. C.M. spoke to a police officer after she arrived home, but officers were unable to locate the suspect.
In a motion in limine, the prosecution also represented the location of the C.M. incident was about two and a half miles from the location of the D.L. incident.
Perry spoke to C.M. by telephone on July 22, 2014. C.M. said she was walking and jogging that morning while wearing headphones, and the man stood three to four feet in front of her after he jumped out of the bushes. She did not describe any damage to the vehicle she observed.
Using the partial license plate number and car description provided by C.M., Perry identified a gold Ford Taurus registered to Gates and Gates's grandmother with the license plate number 4WRN133. Gates's DMV records showed he generally fit the description provided by C.M. and D.L. Perry downloaded Gates's 2011 DMV photo and prepared a photographic lineup for both D.L. and C.M.
On July 23, 2014, C.M. viewed the photographic lineup. C.M. viewed all six photographs sequentially and initially said, "[T]hey all look similar to me . . . ." She viewed the photographs sequentially again and said, "I wanna say five. [¶] . . . [¶] It's probably between four and five. [¶] . . . [¶] Five more than four I think." Photograph number five was Gates's photo. The officer then showed C.M. pictures of Gates's car. She said, "The vehicle looks familiar. I thought that the vehicle had black rims on it."
Gates's car had silver rims.
After the July 23, 2014 photographic lineup, Perry asked C.M. for a description of the perpetrator. She said he was a White male in his early 20's, five feet six inches tall, weighing about 190 to 200 pounds, with blue or green eyes, and a five o'clock shadow. She also said he wore a black nylon puffy jacket, possibly an Adidas bomber style. On about July 25, Perry sent C.M. a photograph of a jacket found in Gates's vehicle, and she was "positive" it was the jacket worn by the perpetrator.
At trial, C.M. described the perpetrator as a White man, who "wasn't . . . tall," average weight (possibly weighing 180 to 200 pounds, but she was unsure of his build because he wore a jacket), in his mid to late 30's, with dark, sad eyes that might have been green. She later testified he might have been in his 20's or early 30's, he had a five o'clock shadow, and he was bald, which she knew because his hood was down when he drove by the second time. She made an in-court identification of the jacket found in Gates's car. She did not make an in-court identification of Gates. C. Verdict and Sentence
The jury found Gates guilty of attempted robbery, not guilty of sexual battery, and guilty of the lesser offense of battery. On January 20, 2017, the court sentenced Gates to a middle two-year prison term for the attempted robbery conviction.
II. DISCUSSION
A. Admission of Other Acts Evidence
Gates argues the court erred in admitting the C.M. evidence. We agree the evidence was improperly admitted.
1. Procedural Background
The prosecution filed a pretrial motion in limine seeking admission of the C.M. incident to prove identity, common plan, and absence of mistake (i.e., intent) based on its similarities with the D.L. incident. The prosecution argued that evidence from the C.M case was essential to prosecution of the D.L. assault, and without that evidence, the D.L. case would be "impossible to try." Gates opposed the motion, emphasizing dissimilarities in the incidents, and noting that "at the same time as these offenses, female joggers were being harassed in the Cordelia area of Fairfield," including an incident involving E.H.
Proving absence of mistake in this case is the logical equivalent of proving intent—i.e., that Gates did not engage in the alleged conduct inadvertently, but rather with the intent to steal or sexually touch D.L.
The trial court admitted the C.M. evidence to prove a common plan. "They are both middle aged women. They both were jogging alone. It was in the same general geographic area, couple of miles apart . . . [and c]ouple of miles of . . . where the defendant lived," and the incidents occurred a few weeks apart. "There was a gold colored car associated with each incident. [¶] Now, gold colored cars are few and far between. There are not many of them out there." The color made the car distinctive despite other dissimilarities in the car descriptions. "Both these women picked the defendant's photograph out of the same photographic line-up . . . , perhaps not with unequivocal identifications. . . . [¶] The clothing that was described . . . it's pretty similar; black hooded jacket, black hooded sweatshirt. The [build], there are some differences, but eye witnesses . . . are not the best at estimating either height or weight. And . . . both of them have him in the same medium build category as opposed to the two third party witnesses [(including E.H.)] that the Defense proposes to call potentially, both of whom describe their assailant as a thin build." Both victims described the perpetrator as White or light-skinned Hispanic. The court noted that "the conduct itself is quite dissimilar" in the two incidents, but observed: while "there may not have been any attempt to have contact with [C.M.], but how many robberies start out with . . . perpetrators having their hand in [a] pocket? [The victims] both have these [MP3] players . . . ." In sum, the court ruled, "these similarities trump the dissimilarities, particularly the conduct dissimilarities."
In pretrial proceedings, counsel represented that D.L. was a 36-year-old White female, and C.M. was a 45-year-old woman who appeared to be Hispanic.
After C.M. completed her initial testimony, Gates moved to strike the testimony describing the June 27, 2014 incident. The court took the motion under submission. The court later acknowledged discrepancies between C.M.'s testimony and her earlier statements, but again stated, "the more telling similarity . . . is her description of the gold vehicle. . . . [T]hat's kind of the hallmark, that's the most distinctive mark. And then you got her identification of this black jacket." The court denied the motion to strike.
During argument on jury instructions, Gates objected to giving CALCRIM No. 375 ("Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.") generally and specifically with respect to proving identity or intent. The court stated "[t]he conduct that [D.L.] experienced is different than the conduct [C.M.] experienced. But, I have to say, they are more similar than I originally envisioned. . . . I didn't realize the word 'bitch' was used towards [D.L.]. [¶] . . . And then I also didn't realize that there was some following conduct [in the C.M. incident]." The court stated its prior ruling on admissibility to prove a common plan meant the evidence was also admissible to prove intent, as a lesser degree of similarity was required to prove intent. On identity, the court indicated admissibility was a closer issue. It invited further argument and took the matter under submission.
The court ultimately ruled the C.M. evidence was admissible on identity. "You've got that odd language. It's not just the use of the B word, but the context in which it was used, and it's just kind of odd for that language to be used with respect to both victims, or explaining witnesses. There was the hooded feature of the clothing, . . . the attempt to conceal some of the identity. The gold car, [although] I realize there are differences in terms of the description of the gold car . . . . [¶] . . . Both the women were accosted in the early morning hours. . . . [T]he close geography. There was this following, kind of stalking aspect of each case. . . . [B]oth incident[s] on a sidewalk . . . near residential areas . . . within weeks of each other. [¶] There were some variances in the description, but not profound variances from the Court's p[er]spective, at least. . . . [Y]ou have those single women walking or jogging alone." Also, "each selected Mr. Gates'[s] photo out of the same sequential lineup . . . . [¶] [O]n balance, there's sufficient similarity in both the number of points and the nature of those that allow the fact finder to reasonabl[y] infer that the same person engaged in both behaviors. . . . [¶] From a 352 standpoint, the [C.M.] incident is not really a crime, [although] it could be viewed as preparation to engage in some criminal conduct. . . . [T]hat's a similarity that makes it more probative on the issue of identity. . . . And I don't know that the prejudice is that great, because there's no obvious crime that was committed as far as the [C.M.] incident." The court therefore agreed to instruct that the C.M. evidence could be considered on the issues of identity, intent, absence of mistake, and common plan.
2. Legal Standards
Evidence Code section 1101 provides: "(a) Except as provided [by statute], evidence of a person's character or a trait of his or her character ([e.g.,] . . . evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent, . . . plan, . . . identity, absence of mistake . . . ) other than his or her disposition to commit such an act."
"Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' [Citation.] . . . [¶] Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, '[i]n proving design, the act is still undetermined . . . .' [Citation.] . . . [¶] Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, italics omitted (Ewoldt), superseded by statute on other grounds as explained in People v. Falsetta (1999) 21 Cal.4th 903, 911-913.)
" 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' " (People v. Steele (2002) 27 Cal.4th 1230, 1243.) Similarity between the uncharged and charged acts is a significant probative factor. (Ewoldt, supra, 7 Cal.4th at pp. 396, 402-403.) "The least degree of similarity . . . is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] . . . [¶] A greater degree of similarity is required in order to prove the existence of a common design or plan. . . . [¶] [T]he common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . [¶] The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' " (Ewoldt, at pp. 402-403.) Other probative factors include closeness in place (People v. Miller (1990) 50 Cal.3d 954, 989 (Miller)) and time (Ewoldt, at p. 398, fn. 3), independence of sources for the charged and uncharged events (id. at p. 404), multiplicity of similar events (ibid.), and similarity in victims (People v. Rogers (1985) 173 Cal.App.3d 205, 212).
Evidence that is probative of a specific fact as provided in Evidence Code section 1101, subdivision (b) may nevertheless be excluded pursuant to Evidence Code section 352 "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." (Evid. Code, § 352; Ewoldt, supra, 7 Cal.4th at p. 404.) " 'Since "substantial prejudicial effect [is] inherent in [Evidence Code section 1101, subdivision (b)] evidence," uncharged offenses are admissible only if they have substantial probative value.' " (Ewoldt, at p. 404, italics added.) Prejudice is heightened if the defendant was not convicted of the uncharged offense, so that the jury might be tempted to convict in the instant case to punish for the uncharged offense; the uncharged offense is more inflammatory than the charged offense; or proof of the uncharged offense is stronger than proof of the charged offense. (Id. at p. 405.) "We review the trial court's [admission of uncharged acts evidence] for abuse of discretion, and view the evidence in the light most favorable to the trial court's ruling." (People v. Edwards (2013) 57 Cal.4th 658, 711; People v. Kipp (1998) 18 Cal.4th 349, 369-370.)
3. Analysis
As noted ante, the trial court admitted evidence of the C.M. incident on issues of intent, common plan, and identity. On appeal, the People defend admission of the evidence only on the issue of identity. We conclude the evidence was inadmissible on any of the three grounds.
a. Intent
"Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant left the store without paying for certain merchandise, the defendant's uncharged similar acts of theft might be admitted to demonstrate that he or she did not inadvertently neglect to pay for the merchandise, but rather harbored the intent to steal it." (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, italics omitted.)
Intent to rob or intent to sexually assault D.L. were relevant disputed issues at trial, but the C.M. incident had no tendency to prove either. C.M. did not testify the perpetrator took her property, attempted or threatened to take her property, or engaged in any conduct supporting an inference he intended or attempted to take her property (e.g., reached toward, mentioned, or stared at her property). Similarly, she did not testify the perpetrator touched her in a sexual way, attempted or threatened to do so, or engaged in any conduct supporting an inference he intended to sexually batter her (e.g., reached for a sexual part of her body, made sexual comments, or leered at her). (See People v. Guerrero (1976) 16 Cal.3d 719, 727 [evidence of prior rape inadmissible where charged offense had no evidence of sexual contact]; cf. People v. Lindberg (2008) 45 Cal.4th 1, 23-24 [Guerrero rule acknowledged but inapplicable on facts of case].) Therefore, evidence of the C.M. incident was not admissible on the issue of intent in the D.L. incident.
b. Common Plan
"Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, '[i]n proving design, the act is still undetermined . . . .' [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution." (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, italics omitted.)
While the C.M. evidence arguably could support an inference of a common plan or scheme in the two incidents, neither the prosecution nor the court articulated how proof of such a plan would support an inference that Gates engaged in relevant disputed conduct during the D.L. incident. (Cf. Ewoldt, supra, 7 Cal.4th at p. 403 [uncharged acts of molesting one stepdaughter admissible as common plan evidence relevant to charged molestation of another stepdaughter; defendant's presence with victim apparently uncontested]; People v. Balcom (1994) 7 Cal.4th 414, 418-421, 424, 426 [uncharged act of rape admissible as common plan evidence to prove defendant committed rape rather than consensual intercourse with victim; defendant's presence with victim apparently uncontested].) The Supreme Court has cautioned against confusing "modus operandi" evidence to prove identity with common plan or scheme evidence to prove conduct consistent with a common plan. (People v. Alcala (1984) 36 Cal.3d 604, 634, superseded by statute on other grounds as explained in People v. Falsetta, supra, 21 Cal.4th at p. 911.) Absent a relevant purpose in introducing the C.M. incident as common plan evidence, admission of the evidence on this ground was an abuse of discretion.
c. Identity
"Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator. For example, in a prosecution for shoplifting in which it was conceded or assumed that a theft was committed by an unidentified person, evidence that the defendant had committed uncharged acts of shoplifting in the same unusual and distinctive manner as the charged offense might be admitted to establish that the defendant was the perpetrator of the charged offense." (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, italics omitted.) "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' " (Id. at p. 403.) We conclude the trial court abused its discretion in admitting the evidence for this purpose because the incidents are insufficiently similar.
The relevant similarities are (1) the incidents took place within a month of each other in residential areas of Fairfield about two and one-half miles apart and within about three miles of Gates's home; (2) the incidents took place in the early morning hours; (3) the victims were middle-aged females walking or jogging alone on residential streets; (4) the perpetrator was identified as a young White or light-skinned Hispanic male; (5) the perpetrator cursed at the victims, calling them "bitches"; (6) the perpetrator drove a "gold" car shortly before and after approaching both victims on foot.
Both victims made tentative identifications of Gates's photograph in photo lineups, but neither was certain. Only D.L. made an in-court identification. --------
The first five factors are, unfortunately, not truly unique or distinctive, and trial evidence regarding the last factor was, at best, equivocal. Descriptions of the perpetrator's vehicle differed (D.L. described a Pontiac with a spoiler; C.M. identified a Taurus) and were not entirely consistent with Gates's car. C.M.'s description of a gold Taurus with a matching partial license plate, and her positive identification of a jacket found in Gate's car as that worn by perpetrator, established a connection between Gates's Ford Taurus and the confrontation with C.M. D.L., however, never identified Gates's car as the one driven by the perpetrator of her assault, and the evidence simply fails to show the vehicles observed by the victims were so distinctive that a reasonable juror could infer they must be the same car.
Multiple similarities may be sufficient to establish identity even if they are not particularly distinctive facts. (Miller, supra, 50 Cal.3d at p. 987.) Here, however, we conclude the trial court abused its discretion in ruling the similarities between incidents amounted to a "signature," thereby proving identity.
Cases cited by the People are unhelpful. The uncharged offense in People v. Rogers, supra, 173 Cal.App.3d at pages 212-213, took place so close in time and location to the charged offense that it was practically an intertwined event that was admissible regardless of Evidence Code section 1101, subdivision (b). (See People v. Malone (1988) 47 Cal.3d 1, 18 [evidence may be admissible "as intertwined with the charged crimes" irrespective of Evid. Code, § 1101, subd. (b)]; People v. Armstrong (2016) 1 Cal.5th 432, 457 [relevance derived from "the fact and sequence of [uncharged acts'] commission" rather than similarity].) In People v. Kipp, a death penalty case, the Supreme Court found a "highly distinctive pattern" of similarity between the charged and uncharged offenses where, "[i]n both instances, the perpetrator strangled a 19-year-old woman in one location, carried the victim's body to an enclosed area belonging to the victim . . . , and covered the body with bedding" (People v. Kipp, supra, 18 Cal.4th at p. 370), in addition to the victims being partially clothed in similar ways and having bruised legs (id. at pp. 359-361). In Miller, a serial-killer death penalty case, denial of the defendant's motion to sever four murder charges from four attempted murder charges was upheld on the basis that all charged acts were relevant to identity and intent. (Miller, supra, 50 Cal.3d at pp. 967-979, 987-989 [all occurred within a year on side streets near gay bars in or near West Hollywood; victims were all gay men who suffered blows or attempted blows to the head with club-like object].) Admission of two uncharged acts was upheld on their relevance to the type of weapon used by defendant and his connection to a location outside of West Hollywood. (Id. at pp. 980-981, 989-991.)
The court abused its discretion in admitting the C.M. evidence to prove intent, common plan, or identity.
d. Prejudice
Errors in admitting evidence of prior misconduct require reversal only if, but for the error, a more favorable result at trial was reasonably probable. (People v. Marks (2003) 31 Cal.4th 197, 226-227; People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.) We conclude the error here was not harmless.
The prosecution repeatedly argued the D.L. case could not be tried without the C.M. evidence, and the prosecutor discussed extensively in closing argument the force of the C.M evidence to establish the identity of the perpetrator in the D.L. matter. The identification in the C.M. incident—in particular, the license plate information dictated by C.M to the 911 dispatcher—was much stronger than the identification evidence in the D.L. case. Although D.L. identified Gates in court as her assailant with certainty, she had repeatedly told police she was not sure she could identify the perpetrator because his hood had partially covered his face; she did not express confidence when she identified Gates's photograph in the lineup a few days after the incident; she said the perpetrator had a mustache and no other evidence indicated Gates had a mustache in that time period or ever; she described a hooded sweatshirt that did not match the jacket specifically tied to Gates; she reported a spoiler or fin on the gold car she saw that did not match Gates's vehicle; and she never identified Gates's car as the one she saw on July 19. At least one juror might have harbored reasonable doubt about D.L.'s less-than-definitive identification of Gates if the C.M. evidence had not been presented at trial.
Because we reverse on this basis, we need not reach other claims of error asserted by Gates.
III. DISPOSITION
The judgment is reversed and remanded for further proceedings consistent with the views expressed in this opinion.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.