Opinion
C085633
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DOUGLAS FAIR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F00003)
Defendant Joseph Douglas Fair was found guilty by jury of attempted premeditated murder (Pen. Code, §§ 664/187, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)), with enhancements for personally discharging a firearm resulting in great bodily injury, personally inflicting great bodily injury resulting in paralysis, and participating in a street gang (§§ 12022.7, subds. (a), (b), 12022.53, subds. (b)-(d), 12022.5, subds. (a), (d), 186.22, subd. (b)(1)). The trial court sustained two prior prison term allegations (§ 667.5, subd. (b)) and sentenced defendant to 40 years to life plus two years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court prejudicially erred when it permitted a police sergeant to identify him in a surveillance video. He also seeks remand based on a change in the law regarding the firearm enhancements attached to his convictions. The Attorney General agrees that remand is required on the second basis. We agree and shall remand on that basis but otherwise affirm.
BACKGROUND
Defendant's victim, Derek S., went with his brother to the Progressive Elks Lodge, a social club in Del Paso Heights, on the night of December 12, 2014. The lodge was a hangout for the Del Paso Heights Bloods gang.
Derek pulled cash out of his pocket and ordered drinks. Will Fields, a validated member of the Del Paso Heights Bloods, was glaring at Derek. This led to a verbal confrontation between Fields and Derek that turned physical. The fight spread before the club's bouncers ended it and threw Derek out. As Derek ran to the car, he was shot in the back and fell. He was taken to the hospital, where he underwent multiple surgeries for a serious gunshot wound. As a result of the shooting, he spent several months in the hospital and was rendered a paraplegic.
While in the hospital, Derek told a police detective that he knew the shooter but would not identify the man or go to court because he did not want to "snitch." Derek also told the detective that he and his brother were jumped inside the lodge by some members of the Elm Street gang, and the man who shot him had tried to sneak up on him before his brother knocked the man down.
Derek's mother knew defendant from the neighborhood and church. She knew that he was "from 38, and he's a blood." She explained that "38" refers to Del Paso Heights gang "38 Elm Street." When he was finally able to talk--more than a week after the shooting--Derek told his mother that Fields had been giving him hard looks and head butted him, after which they all jumped him. He told her that defendant shot him.
Patrick Scott is a bouncer for the Elks Lodge. At trial, he testified that he could not recall the events of the incident because he was drunk that night. He told a police detective that, after he threw Derek out of the club, "I seen somebody come with dreads with a pea coat, shooting." He saw a man point a gun at Derek. Scott initially denied knowing the shooter, but later admitted knowing him but would not name him out of fear of retaliation. He told the detective that the shooter would be found by looking through the rolls of the Elm Street Gangsters. When shown a photograph of defendant, Scott hit it and--addressing defendant's photograph as if he were "scolding" it--said, "That's why I don't understand why you did that. That was dumb. The situation was under control. You shoulda never did that. Never." When Scott told defendant a surveillance video showed him pulling a gun from his pocket, defendant exclaimed, "Fuck! Fuck!" and then hung up the phone.
Videos from the club's surveillance system were played to the jury. An African-American man wearing a pea coat, with dreadlocks and a baseball cap on backward, is seen leaning on a car and walking through the parking lot about 20 minutes before the shooting. He walks through the eating area of the club while smiling and wearing his hat forward, about one minute before the shooting. The videos also show a fight in the bar area that involved multiple people before being broken up. A man (Derek) is thrown out of the club after the fight ends. The man in the pea coat is seen leaving through the same door seconds later while pulling a gun out of his right coat pocket.
During her testimony, Derek's mother identified defendant in a surveillance video, as the man wearing a hat and pea coat who walked in and was also seen walking outside the bar, and who took the gun out of his coat pocket. As we discuss in detail post, Sacramento Police Sergeant Michael Lange also identified the man wearing the pea coat in the videos as defendant.
Chou Vang, a district attorney's investigator and formerly a Sacramento Police Detective in the gang unit, testified as an expert on gangs. As relevant to defendant's claim of error on appeal, Vang testified that gang members often decline to provide information to the police to avoid being labeled as a snitch. Fear of retaliation often causes members of the community to refuse cooperating with investigations related to gang activity. The prosecution presented additional evidence that defendant had multiple contacts with gang members since 2007, which included occasions where he committed crimes with them. E-mails relating to gang members and gang killings that were sent to defendant while he was in jail were presented, as were photographs of his gang-related tattoos, and the recording of a jail conversation between defendant and another person in which they referred to each other as "38" and talked about other gang members in jail. Based on this evidence, Vang opined that defendant was a member of the Del Paso Heights Bloods.
Defense witness, Elijah Montaie, identified by Vang as a member of the Del Paso Heights Bloods, testified that he was a bouncer at the club and that defendant was in the club's back patio area about 10 to 15 minutes before the shooting. After the fight, Scott pushed Derek out of the club, and Montaie locked the door. Defendant was in the patio area when the shooting took place.
DISCUSSION
I
Identification Testimony
Defendant contends the trial court erred in admitting Sergeant Lange's testimony identifying defendant in the surveillance video. He concedes that "the court was well within its discretion in finding" the testimony would assist the jury and agrees that it was "well established that Sergeant Lange had personal knowledge of [defendant's] appearance." But he asserts the court's failure to preclude the testimony under Evidence Code section 352 was error. We disagree.
A. Background
Defendant moved in limine to preclude Lange's identification testimony, arguing that it was unnecessary and prejudicial. The prosecutor argued defendant was now wearing glasses and was without a hat, whereas in the video he had on a hat but no glasses. Further, because the jury would hear of defendant's multiple contacts with police and extensive criminal and gang activity from other witnesses, Lange's description of multiple non-criminal contacts with him would not be prejudicial.
The trial court held an Evidence Code section 402 hearing wherein it examined the video surveillance and heard Lange testify about his multiple contacts with defendant over a 15-year period and his familiarity with defendant's appearance and mannerisms. The court held the testimony was admissible as it would be helpful to the jury; the actual shooting was not on the videos and the only video showing defendant with a gun was brief and at an unhelpful angle. The court found Lange's testimony short, probative, and not unduly prejudicial under Evidence Code section 352.
At trial, Lange testified that he contacted and arrested gang members as a patrol officer. He participated in at least one hundred gang investigations. He first met defendant when he was a new patrol officer in 1999 and his last contact with defendant was in October 2014 when he had a brief conversation with defendant while on patrol at Haginwood Park. Lange could give a date and time to at least six other contacts with defendant, and believed he contacted defendant at least an additional 10 times. He testified that he had first been asked to identify the person from a still photo from one of the surveillance cameras, and had identified the person as defendant. He then had watched the entire surveillance video and there was no doubt in his mind that defendant was the person carrying the handgun while leaving the club.
B. Analysis
A lay witness may testify to an opinion when it is rationally based on the perception of the witness and is helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800.) Admission of lay opinion testimony is within the trial court's discretion. (People v. Mixon (1982) 129 Cal.App.3d 118, 127.)
Evidence Code section 352 permits the exclusion of relevant evidence where "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.) We review a trial court order denying a motion to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 49.)
We first reject the Attorney General's argument that defendant forfeited this claim of error by failing to object at trial. Although the Attorney General attempts to parse defendant's many objections to argue that he never claimed other witnesses adequately identified him, it is clear defendant brought the adequacy issue to the trial court's attention. It is also clear that the court recognized the issue when it opined that "in weighing possible prejudice, [it] must determine if the nonlaw enforcement testimony available is adequate."
Although defendant argues on appeal that the trial court "had gotten it right" when making that observation, but "simply failed to make that determination" in its later ruling, we observe that the court did implicitly determine that the non-law enforcement testimony was not so adequate that, together with other considerations, Lange's identification was rendered more prejudicial than probative when it ruled that Evidence Code section 352 did not prohibit its introduction.
In People v. Perry (1976) 60 Cal.App.3d 608, we addressed when a non-percipient witness may testify to an identification based on a recorded image. In Perry, a movie camera recorded a robbery. A peace officer recognized Perry from the recording "based upon past recollection of [Perry's] appearance from numerous street contacts during the preceding five-year period and the fact that [Perry] had an abnormal-appearing eye." (Id. at p. 610.) At trial, Perry unsuccessfully objected to this testimony, as well as testimony by Perry's parole officer, who identified the person on the film as Perry "on the basis of general facial features, his height and the abnormal right eye." (Id. at pp. 611-612.) On appeal, the defendant asserted only a percipient witness may give nonexpert opinion testimony on a person's identity. (Id. at p. 612.) We rejected the contention, finding, "[t]he witnesses each predicated their identification opinion upon their prior contacts with [Perry], their awareness of his physical characteristics on the day of the robbery, and their perception of the film taken of the events. Evidence was introduced that [Perry], prior to trial, altered his appearance by shaving his mustache. The witnesses were able to apply their knowledge of his prior appearance to the subject in the film. Such perception and knowledge [were] not available directly to the jury. The opinions of the witnesses were sufficiently based upon personal knowledge to permit their introduction; the question of the degree of knowledge goes to the weight rather than to the admissibility of the opinion. [Citation.]" (Id. at p. 613.)
Perry was applied in Mixon, where the Fifth Appellate District upheld Mixon's conviction and use of lay opinion testimony to identify him. There, two police officers testified that they had seen an unclear surveillance photograph during their investigation of a robbery and, from their prior contacts with Mixon, identified him as one of the robbers, though he had shortened his sideburns and grown a moustache by the time of trial. (People v. Mixon, supra, 129 Cal.App.3d at p. 125.) The Mixon court construed Perry as requiring, as a predicate for the admissibility of lay opinion testimony as to the identity of persons depicted in surveillance photographs, that the witness testify from personal knowledge of the defendant's appearance at or before the time the photo was taken. (Id. at p. 128.) Mixon added that federal cases have expressed concern where the lay identification testimony comes from law enforcement officials, that such testimony will increase the possibility of prejudice in that the defendant is presented as a person subject to a certain degree of police scrutiny. (Id. at p. 129.)
People v. Ingle (1986) 178 Cal.App.3d 505 cited Mixon and Perry to announce that "[i]t is now clearly established that lay opinion testimony concerning the identity of a robber portrayed in a surveillance camera photo of a robbery is admissible where the witness has personal knowledge of the defendant at or before the time the photo was taken, and the witness had knowledge of the defendant's appearance at or before the time the photo was taken and his testimony aids the trier of fact in determining the crucial identity issue." (Id. at p. 513.) Ingle involved robbery of a liquor store and the identification of defendant in the surveillance video by the victim clerk. (Id. at pp. 508-510.) The actual issue on appeal was whether the witness's viewing of the videotape before identifying the defendant from a photo lineup violated due process. (Id. at pp. 511-512.)
Most recently, our Supreme Court has held that a ruling allowing a peace officer to identify a person on a surveillance recording is reviewed for an abuse of discretion. (People v. Leon (2015) 61 Cal.4th 569, 600.) Citing Perry, Mixon, and Ingle, Leon upheld the use of such lay opinion testimony, provided that the witness had a sufficient basis of knowledge to make the identification. (Leon, at pp. 600-601.)
Defendant's argument rests primarily on the cautionary language in Mixon about the potential prejudicial effect of a law enforcement officer giving lay opinion testimony identifying the defendant. From this language and the federal cases from whence the concern originates, defendant concludes it was improper to admit Lange's testimony in light of the allegedly inherent prejudice of having an officer testify, the relative clarity of the surveillance video, and the identification testimony of Derek's mother. But our Supreme Court did not express concern about any prejudice inherent in a peace officer identification of a defendant in a video or photograph when it upheld such testimony in Leon. (See People v. Leon, supra, 61 Cal.4th at pp. 600-601.) Thus, we reject the unsupported notion that such prejudice is inherent and instead analyze any potential prejudice pursuant to Evidence Code section 352.
In any event, even if we assume that such identification testimony is concerning when coming from law enforcement due to the probable inference that the identified defendant had frequent contact with the police, here there was no such concern. This is because testimony other than Lange's independently and solidly established defendant's frequent contacts with the police due to his gang associations. (See People v. Gionis (1995) 9 Cal.4th 1196, 1214 ["The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging' "].) In establishing the foundation for his identification testimony, Lange testified he had frequent contacts with defendant, but did testify about any criminal conduct by defendant. Given the properly admitted gang evidence establishing defendant's extensive contacts with the police, there was no prejudice to defendant from Lange's testimony.
The witnesses to the incident were unwilling to identify defendant. He does not dispute the prosecutor's assertion that he was wearing glasses in the courtroom but not in the video, and a hat in the video but not in the courtroom. Nor does defendant dispute that the video showing him pulling out the gun right before the shooting was brief and the angle unhelpful. The key issue in this case was the identity of the shooter. Thus, the probative value of identification by any one witness was high and the combined effect of identifications by multiple witnesses enhanced the cumulative probative value of their identifications in addition to corroborating each other's identifications. The purported prejudice does not substantially outweigh this probative value. Lange's identification testimony was clearly highly probative and, as we have discussed, not unduly prejudicial. While the victim's mother did identify defendant in the video, it was not an abuse of discretion to allow Lange to do so.
II
Senate Bill No. 620
On October 11, 2017, the Governor signed Senate Bill No. 620 (Stats. 2017, ch. 682, § 2). This bill amended sections 12022.5 and 12022.53, effective January 1, 2018, to allow the trial court discretion to dismiss a firearm enhancement imposed pursuant to this section. (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
Defendant argues the amendment applies retroactively to his case. The Attorney General agrees, and we agree with the parties. The amendment to sections 12022.5 and 12022.53 applies retroactively to cases not final on appeal. (People v. Arredondo (2018) 21 Cal.App.5th 493, 507; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.) Unlike the court in People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, here, we cannot say "the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." Accordingly, we shall remand for the trial court to determine whether to exercise its discretion to strike any or all firearm enhancements.
We denied defendant's motion to file a supplemental brief addressing the effect of the California Supreme Court's decisions in People v. Le (2015) 61 Cal.4th 416 and People v. Rodriguez (2009) 47 Cal. 4th 501 on his sentence. These cases were decided before defendant was tried and sentenced; defendant raised them in his request for supplemental briefing months after briefing was concluded and after being informed that this case was pending decision. Because we are already remanding for potential resentencing, we shall expand our remittitur to allow the trial court to address this issue on remand. --------
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to consider exercising its discretion under section 12022.53, subdivision (h), and section 12022.5, subdivision (c), as amended by Senate Bill No. 620, and to consider the effect, if any, of the California Supreme Court's decisions in People v. Le, supra, 61 Cal.4th 416 and People v. Rodriguez, supra, 47 Cal. 4th 501 on the sentence and, if appropriate, to resentence defendant accordingly.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Murray, J.