Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 04WF2333, Carla Singer, Judge.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Luis Teodoro Ponce appeals from a judgment after a jury convicted him of second degree murder and found true the firearm enhancement. Ponce argues the trial court erroneously denied his motion to suppress evidence and the court erroneously admitted evidence. Neither of his contentions have merit. We affirm the judgment.
FACTS
In August 2004, Ponce, his wife, Maria Perez, and their baby lived on Saru Circle in Huntington Beach. German Garcia (German), his wife, Lisette Noemi Lopez Canseco (Lisette), and daughter lived nearby on Tamaru Drive. Ponce’s brothers, Rene (Rene) and Nivardo Garcia (Nivardo), and Nivardo’s wife lived with them.
In early August, Ponce and Rene were sitting in the alley when German sped by them erratically in his car causing gravel and dirt to fly at them. Ponce was upset and was going to confront German, but he did not because when German returned, he was with his wife and daughter.
One evening two weeks later, Jesus Pulido was with friends on Saru Circle when he heard people arguing and then a gunshot a little before 9:00 p.m. Pulido ran quickly towards the alley where he thought the shot was fired. He saw four or five people running away—one might have been Rene. He also saw a man, later identified as German, leaning against a car. German took a few steps and fell to the ground. Pulido saw blood on his face and chest and realized he had been shot. Pulido saw a man retrieve a cellular telephone from a nearby car and call 911.
Law enforcement officers and paramedics arrived. German had been shot in the chest, and paramedics’ attempts to save his life were unsuccessful. German had a key ring with a couple keys and a key fob in his right hand; officers did not find a knife. Officers found a cold 18-pack of Tecate beer in German’s car rear passenger seat. They also found .380-caliber shell casing, cigarette butts, beer cans, and additional beer cans near the car.
Lisette had been working at the Taco Grill starting at 5:00 p.m., that day. When she left for work, Ponce was drinking beer with a man she did not know. When she returned home just after 9:00 p.m., law enforcement officers had blocked the street. Lisette told an officer where she worked and her boss was “‘Mr. Luis.’”
Officer Edmond Kennedy went to the Taco Grill to confirm Lisette’s alibi. When Kennedy arrived, he saw a man, later identified as Ponce, sitting at a picnic table in front of the restaurant. He said hello and asked for his name. Ponce indicated he did not speak English. He asked for his name in Spanish, and he said, “‘Luis.’” He asked him to write his full name and date of birth in his notebook. He wrote a “T,” crossed it out, wrote, “‘Luis Martinez Ochoa[,]’” and wrote his birth date. He radioed in his name and birth date, but there were no matches. Kennedy asked him where he lived, and he initially said he did not know, but then stated he lived in Stanton with an uncle and had been in the United States four months. He told Kennedy that he worked at the Taco Grill and then said, “He worked at the Laundromat next to the Taco Grill.”
As they talked, a car drove by, and Ponce stood up and waved his arms and whistled, but the car kept going. The car drove by again, and the driver, Maximo Tlaseca, saw Ponce and stopped in the parking lot. Kennedy and his partner spoke to Tlaseca away from Ponce and asked him whether he knew Ponce. He said Ponce was his neighbor, he had known him for two years, and he knew him by the name of “Teodoro Garcia.” He said Ponce worked at a nearby car wash. When Kennedy’s partner asked him what his name was, Ponce said, “‘Luis Martinez.’” Kennedy arrested Ponce for giving him a false name pursuant to Penal Code section 148.9. Kennedy took Ponce to the crime scene.
All further statutory references are to the Penal Code, unless otherwise indicated.
Officer Kevin Johnson advised Ponce of his Miranda rights in Spanish. Ponce waived his rights and told officers his name was “Luis Teodoro Garcia Ponce” and his birth date was “2/12/79.” Johnson asked him why he gave officers false information, and Ponce said he was scared. Ponce consented to having his hands subjected to a gunshot residue (GSR) test, which was performed later. He was taken to a police substation for an interview.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
A detective interviewed Ponce with the assistance of Spanish speaking Officer Sam Lopez. Ponce said he lived on Saru Circle and knew German for a couple months, but they were not friends and did not speak to each other. Ponce told them about an incident where German was driving recklessly in the alley with his daughter in the car.
Ponce initially denied being at the scene of the shooting. However, Ponce then explained he, his wife, and child were walking through the alley to his brother’s house when he saw German and two men drinking beer at approximately 6:00 p.m. He said that when they were at his brother’s apartment, German and the men walked in and went into German’s room. They were drinking beer, talking loudly, and playing music. Ponce went home to get something at about 8:00 p.m. As Ponce was walking to his brother’s apartment, he saw German and the men in German’s car, and he overheard them talking about going to buy more beer. At 8:30 p.m., Ponce saw German driving recklessly with German’s daughter in the car. Ponce told German “to stop driving like that and to slow down.” German stopped, got out of his car, told him it was none of his business, and asked, “‘Hey, do you want some trouble?’” Ponce thought German was drunk.
German walked towards Ponce so they were “chest to chest,” and Ponce thought he was going to attack him. Ponce turned towards his right to walk away, and Ponce heard a gunshot. Ponce thought he had been shot and ran home.
After being confronted with the GSR test results, Ponce admitted he possessed a .380-caliber handgun and that he shot it that afternoon. Ponce denied having a gun when he was in the alley and denied shooting German.
After further questioning, Ponce stated he hid the gun in a fence in the alley. He explained that German moved towards him with what he thought was a knife, he grabbed the gun. Ponce claimed he did not know his friend had loaded the gun. Ponce pointed a gun at German and touched it to his chest to scare him, and the gun accidentally went off.
Ponce said he threw the gun away. After the detective questioned him further on the gun’s location, Ponce said the gun was in his garage. Later, he showed officers where he hid the gun. The gun was loaded with a magazine containing three .380-caliber hollow point bullets. A fourth bullet was chambered, and the safety was on. Ponce admitted to drinking a few beers that day.
Two days later, Officer Steven Mack interviewed Rene with the assistance of Spanish speaking Officer Miguel Prieto at the car wash where both Ponce and Rene worked. Rene denied having any knowledge of the shooting. After Mack told Rene witnesses saw him there, Rene said he would tell the truth. Rene said that at approximately 8:30 p.m., he was in the Tamaru alley and Ponce was at home visiting family and friends when he heard a gunshot. Mack asked him to tell the truth. Rene said Ponce drank three or four beers earlier that afternoon and Ponce left to buy more beer. Rene and Ponce were in the alley drinking beer and smoking cigarettes when German returned with a 12 pack of Tecate. German called Ponce and Rene “slobs and a bunch of dumb cholos,” and they argued. Ponce was upset and attacked German. When German began to win the fight, Ponce pulled out a gun from his right hip pocket and shot German once in the chest. German was unarmed.
An information charged Ponce with murder (§ 187, subd. (a)), and alleged he personally discharged a firearm causing death (§ 12022.53, subd. (d)).
Ponce filed a motion to suppress evidence. The district attorney opposed the motion. Ponce replied. After hearing argument, the trial court denied the motion.
At trial, Lisette testified Ponce usually drank eight beers on the weekends and sometimes during the week. She said they argued because she wanted to move, but he never hit her.
Rene testified he lied at the preliminary hearing when he said he was inside the apartment when he heard the gunshot. Rene testified he was in an alley south of Tamaru when heard the gunshot and then saw Ponce running away. Rene explained that when Mack interviewed him at the car wash, he made up the story about seeing Ponce shoot German because Mack was pressuring him. Rene stated he lied to Mack because his manager was getting angry and he needed to return to work. He said the story just “came into his head.” Rene admitted it was difficult to testify against Ponce, but denied he changed his story because he did not want to see his brother convicted of murder.
Steven Guluzian, a forensic scientist, testified he analyzed the GSR test samples and found unique residue particles on Ponce’s and German’s hands. He explained how gunshot residue might be expected to be found on a victim who is shot at close range. Gunshot residue on the hands means either the gun was recently handled or fired by the person or the person was in close proximity to the firing.
Thomas Matsudiara, a forensic scientist, testified the expended .380-caliber casing in the alley and the bullet extracted from German’s body were fired from the gun in Ponce’s garage. He tested the gun and determined it would not accidentally discharge because of its high trigger pull.
Joseph Halka, a forensic pathologist, testified he performed the autopsy on German. German suffered a single bullet wound in his chest. Based on his examination, Halka concluded the wound was a “contact wound”—the gun barrel was held against German’s body when it was fired. He had a “fatty” liver, which was a result of alcohol consumption. The parties stipulated German’s blood-alcohol level was 0.15 percent.
Ponce offered the testimony of Susana Rivera, Nivardo’s wife. She said Ponce and his family were visiting and Ponce left before dark. Later, she heard what sounded like a firecracker. She stated German drank every day and was “very violent” when he was intoxicated. She said he yelled at his wife, and she saw him hit his wife once. On cross-examination, Rivera admitted that when officers interviewed her hours after the shooting, she never told them German was violent.
Ponce also offered Perez’s testimony. She testified Ponce and their child were visiting Nivardo; Rene was there. After their baby fell asleep, Ponce went home to get the stroller. German was outside drinking, but he was not loud. She heard what sounded like a firecracker.
Ponce offered Armando Garcia’s testimony. Garcia testified he was German’s neighbor and approximately one to two months before the shooting, he parked his car and blocked German’s car. After quickly changing, he went outside and German was honking his horn and using profanity. German had put a beer can on top of Garcia’s car, and he could smell alcohol on his breath. He told German to calm down, but German was upset.
Ponce offered Nivardo’s testimony. Nivardo testified he saw German drinking outside at approximately 5:30 p.m., the night of the incident. Nivardo said he was at home when he heard what sounded like a firecracker; Rene was not with them. He said German drank “a lot[,]” and he saw him hit his wife once.
The jury convicted Ponce of second degree murder and found true the firearm enhancement. The trial court sentenced Ponce to 15 years to life on count 1 and consecutive term of 25 years to life on the firearm enhancement for a total state prison term of 40 years to life.
DISCUSSION
Motion to Suppress
Ponce argues the trial court erroneously denied his motion to suppress because (1) he was unlawfully detained, and (2) there was no reasonable suspicion justifying his detention for giving false information to a peace officer. Neither of his contentions have merit.
“‘“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.”’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 255.)
“Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty. [Citations.] Our present inquiry concerns the distinction between consensual encounters and detentions. Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.] [¶] The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.] ‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled. [Citations.] The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).) “Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search . . . provided they do not induce cooperation by coercive means. [Citation.]” (United States v. Drayton (2002) 536 U.S. 194, 201 (Drayton).)
The following facts are taken from the testimony at the preliminary hearing. Lisette approached Kennedy and Officer Matthew Nevarov and told them she believed the man lying on the ground was her husband. She told them where she lived and worked, that she had just got off work, and her manager’s name. Kennedy and Nevarov went to her workplace to verify her employment. When they arrived at the Taco Grill, they saw a man, later identified as Ponce, sitting at a picnic table on the sidewalk in front of the restaurant. Kennedy parked the patrol car, and they got out. Ponce was sitting with his elbows resting on the table, his hands holding his head, and his head facing down. He appeared to be waiting for a ride. Kennedy asked him for his name. Ponce responded he did not speak English so Kennedy asked him in Spanish. Ponce replied, “‘Luis.’” Kennedy asked him if he worked at the Taco Grill, and Ponce pointed at the restaurant and shook his head in the affirmative. Kennedy thought the man was “Luis,” the man Lopez said was her manager. Kennedy asked him to write his complete name and birth date in his notebook. He wrote a “T,” crossed it out, and then wrote, “‘Luis Martinez Ochoa,’” “9-12-79,” and “‘Disienbre’” [sic]. Kennedy thought “disienbre” meant December in Spanish. Kennedy radioed in the name, but there were no matches. Ponce said he was waiting for his uncle to give him a ride home and that he lived in Stanton, but he did not know the address. Ponce said he came to the United States four months earlier from Puebla, Mexico. Kennedy smelled alcohol on his breath, but he did not show any physical manifestation of being intoxicated. Kennedy again asked Ponce where he worked, and he said the Laundromat next door.
When a black car drove by, Ponce waived his arms and whistled, but the car did not stop. Ponce said the driver was his uncle who was coming to pick him up. He looked at Nevarov and placed his right hand next to his ear as if he was talking on a telephone; he pointed across the street to the pay telephone. Nevarov understood this to mean he wanted to use the telephone. Ponce walked across the street, and Nevarov walked behind him. Ponce tried to make a telephone call, but did not speak with anyone and hung up the telephone. He walked back to the table and sat down. The black car returned and parked. Ponce walked towards the car, looked at the driver as if they knew each other, and tried to get into the car. “[Kennedy] asked him if he would wait a minute in Spanish.” He said, “‘Uno momento por favor.’” Nevarov asked the driver to get out of the car so he could speak with him. The driver complied and said his name was Maximo Tlaseca, his birth date was May 29, 1982, and his address was 8431 Tamaru #A. Tlaseca identified Ponce as Teodoro Garcia. Tlaseca said he lived on Tamaru for eight years and Ponce lived next to him for two years. Tlaseca said Ponce did not work at the Taco Grill or the Laundromat, but at a nearby car wash. Tlaseca said he was going to pick up his mother when he saw Ponce with the officers. After picking up his mother, he returned to see if he needed a ride home. The officers believed Ponce was trying to conceal his identity and residence, which was near where German’s body was found. The officers detained him. Nevarov again asked Ponce his true name, and he replied, “Luis Martinez.” The officers arrested Ponce for falsely identifying himself in violation of section 148.9, handcuffed him and put him in the patrol car, and took him to the crime scene.
Unlawful Detention
Ponce argues the following facts demonstrate a reasonable person would not have felt free to decline the officers’ requests or terminate the encounter: Kennedy and Nevarov, in a marked patrol car, “descended upon [him while he was] sitting in a public place,” they questioned him, they asked him to write down his name and date of birth, they ran a warrant check, Nevarov followed him across the street, Nevarov waited while he made a telephone call, Nevarov walked him back across the street, Kennedy “told him to wait when he” tried to get into Maximo’s car, and Nevarov questioned Maximo. Based on all the circumstances, we conclude the encounter was consensual.
It was permissible for Kennedy and Nevarov to approach Ponce at the Taco Grill and ask him questions and request identification. (Drayton, supra, 536 U.S. at p. 201; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.) Although they were in a marked patrol car and in full uniform, there were just two officers, and neither officer drew his weapon, nor did they touch him during the encounter. Additionally, the fact they ran a warrant check did not automatically transform the consensual encounter into a detention. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1286-1287 [warrant check does not automatically convert consensual encounter into seizure].) A warrant check is but one factor in making the determination whether a reasonable person would have felt free to decline the officers’ requests or terminate the encounter. (Id. at p. 1287.) The heart of Ponce’s complaint is really the events after the initial investigation when he walked across the street, made a telephone call, walked back across the street, and tried to get into Maximo’s car.
Ponce notes neither the United States Supreme Court nor the California Supreme Court has addressed the issue of whether a warrant check ipso facto transforms a consensual encounter into a detention. We agree with the Bouser court it does not, but that it is one factor to be considered when assessing whether a reasonable person would have felt free to terminate the encounter.
After Maximo drove by, Ponce looked at Nevarov, placed his right hand next to his ear, and pointed across the street to the pay telephone. Nevarov testified he “waved to him, like, go ahead.” Ponce walked across the street, and Nevarov walked behind him. Nevarov was about five to 10 feet behind him. Nevarov did not direct him, talk to him, or touch him as they walked across the street. Ponce tried to make a telephone call and hung up the telephone. Ponce’s assertion Nevarov gave him permission or allowed him to use the pay telephone is unpersuasive. Ponce gestured he wanted to use the telephone, and Nevarov used his hand to say “go ahead.” Ponce relies on this to contend he needed permission, but a reasonable person could interpret Nevarov’s reaction as “Go ahead. I’m not stopping you.” To this point in the contact, there was absolutely no evidence Ponce tried to leave and the officers stopped him. He was waiting for a ride, which he just saw drive by.
When Ponce was done, he looked and pointed at the picnic table. Nevarov “used [his] left arm and invited him to go return.” Ponce walked back to the picnic table and sat down. Neither Nevarov nor Kennedy told Ponce to sit down at the picnic bench—he did so on his own. After Ponce sat down, Nevarov and Kennedy stood near the back of their patrol car. Contrary to Ponce’s characterization of the events, Nevarov did not tell him to return to the picnic table or sit down. Nevarov testified he walked across the street with him because Ponce had been drinking and he wanted to make sure Ponce safely crossed the street. Nevarov did not restrict Ponce’s movements in any manner.
When Maximo returned and parked, Ponce walked towards the car and was about to get into the car. “[Kennedy] asked him if he would wait a minute in Spanish.” He said, “‘Uno momento por favor.’” Kennedy did not tell him to stop or to not get into the car. He asked Ponce if he would please wait a minute. Kennedy did not direct his movements, command him to not get into the car, or compel him to stay at the scene.
Ponce’s reliance on the fact Nevarov’s police report does not state he said please is unpersuasive. Nevarov testified he asked Ponce if he would please wait, and Ponce points to no evidence Nevarov was not credible on this point.
Ponce relies on People v. Bower (1979) 24 Cal.3d 638 (Bower), People v. Verin (1990) 220 Cal.App.3d 551 (Verin), and People v. Roth (1990) 219 Cal.App.3d 211 (Roth), to support his contention the trial court erroneously denied his motion to suppress. In both Bower and Verin, officers commanded defendants to stop, and therefore, they are inapposite. In Bower, the officer “call[ed] to [defendant] to stop and to turn around[.]” (Bower, supra, 24 Cal.3d at p. 643.) In Verin, the officer “explicitly, unambiguously[,] and authoritatively demanded that [defendant] and his companion ‘Hold it. Police.’ or ‘Hold on. Police.’” (Verin, supra, 220 Cal.App.3d at pp. 556-557.) As we explain above, neither Nevarov nor Kennedy commanded or directed Ponce to do anything.
In Roth, the issue was not the distinction between consensual encounters and detentions. The issue there was whether there was sufficient grounds for a detention. (Roth, supra, 219 Cal.App.3d at p. 214.) The court concluded there was not because the only grounds for the detention was defendant’s early morning presence in a deserted parking lot of a closed shopping center. (Id. at p. 215.) As we explain below, there were sufficient grounds for Kennedy and Nevarov to detain Ponce after his conflicting statements about who he was and where he lived and Nevarov’s questioning of Maximo.
Finally, why Nevarov walked across the street with Ponce (because he had been drinking), and why Kennedy asked him if he would please wait a minute (to wait for a translator), are irrelevant to our determination. The proper inquiry is whether a reasonable person would have felt free to terminate the encounter. (Drayton, supra, 536 U.S. at p. 201 [officer’s subjective intent irrelevant].) Here, we conclude a consensual encounter occurred between the officers and Ponce because a reasonable person would have felt free to terminate the encounter with the officers.
Reasonable Suspicion
Nevarov testified he detained Ponce when he learned Ponce’s true name. Ponce contends his detention was unlawful because officers had no reasonable suspicion he was involved in criminal activity. We disagree.
“To justify [a] . . . detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. [Citations.] This reasonable suspicion requirement is measured by an objective standard, not by the particular officer’s subjective state of mind at the time of the stop or detention. [Citations.] Accordingly, the circumstances known or apparent to the officer must be such as would cause a reasonable law enforcement officer in a like position, drawing when appropriate on his or her training and experience, to suspect that criminal activity has occurred, is occurring, or is about to occur and that the person to be stopped or detained is involved in the activity. [Citations.] The corollary to this rule is that an investigative stop or detention predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in good faith. [Citation.]” (People v. Conway (1994) 25 Cal.App.4th 385, 388-389.)
When officers initially spoke with Ponce, he said his name was “‘Luis,’” and when asked to write his complete name and birth date, Ponce wrote a “T,” crossed it out, and then wrote, “‘Luis Martinez Ochoa,’” “9-12-79,” and “‘Disienbre’” [sic]. Ponce initially said he worked at Taco Grill, but then said he worked at the adjacent laundromat. Ponce said he lived in Stanton with his uncle, but he did not know the address—he had moved to the United States four months earlier.
When Maximo returned, he told Nevarov that Ponce was Teodoro Garcia. He said Garcia lived next to him for two years, and he worked at a nearby car wash. Based on the facts Ponce had lied about his identity, where he lived, and where he worked, and he lived near where German’s body was found, officers had reasonable suspicion justifying the detention.
Additionally, Nevarov testified that when Maximo told them Ponce’s true identity and address, he was detained. Nevarov again asked Ponce his true name, and he said, “‘Luis Martinez.’” The officers properly arrested Ponce for falsely identifying himself in violation of section 148.9, which requires a person be lawfully detained or arrested before falsely identifying himself. (In re Voeurn O. (1995) 35 Cal.App.4th 793, 796 [section 148.9 applies when person falsely identifies himself after being lawfully detained or arrested].) Therefore, officers had reasonable suspicion to detain Ponce.
Section 148.9, subdivision (a), states: “Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer listed in [s]ection 830.1 or 830.2, or subdivision (a) of [s]ection 830.33, upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.”
Ponce contends that because the officers detained him for giving a false name, “he could not be lawfully detained for giving a false name while being lawfully detained.” He cites to no authority for this proposition, and we find it unpersuasive. Officers detained Ponce because he gave a false name, an incorrect address, and lied about where he worked. He lived near where German had been shot. These facts were sufficient to detain him.
Conclusion
As we explain above more fully, from the time Nevarov and Kennedy approached Ponce to the time they spoke with Maximo, the contact was a consensual encounter. When Maximo told officers Ponce’s name, his address, and his work place, Ponce was detained based on his previous inconsistent statements. When Ponce again falsely identified himself, officers lawfully arrested him for violating section 148.9, subdivision (a). Ponce’s subsequent consent to the GSR test, his statements, and his decision to show officers where he hid the gun were valid. Therefore, the trial court properly denied Ponce’s motion to suppress.
Admission of Evidence
Ponce argues the trial court erroneously admitted an 8 x 10 color photograph of German with his daughter at what appears to be a school playground. Not so.
The exhibit was transmitted to this court for our review.
Relevant evidence is “evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Although “‘there is no universal test of relevancy, the general rule in criminal cases [is] whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution[.]’” (People v. Freeman (1994) 8 Cal.4th 450, 491.)
Evidence Code section 352, however, authorizes a trial court to exclude relevant evidence. “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.” (Evid. Code, § 352.) “We review a challenge to a trial court’s choice to admit or exclude evidence under [Evidence Code] section 352 for abuse of discretion. [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)
In the context of a death penalty case, the California Supreme Court has stated: “Courts should be cautious in the guilt phase about admitting photographs of murder victims while alive, given the risk that the photograph will merely generate sympathy for the victims. [Citation.] But the possibility that a photograph will generate sympathy does not compel its exclusion if it is otherwise relevant. [Citation.] The decision to admit victim photographs falls within the trial court’s discretion, and an appellate court will not disturb its ruling unless the prejudicial effect of the photographs clearly outweighs their probative value. [Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 331.)
The Attorney General claims Ponce waived appellate review of this issue because he did not object to its admission when the district attorney questioned Lisette about the photograph during trial or when the district attorney moved to admit the exhibits into evidence at the end of trial. Ponce argues any objection to Lisette’s testimony or after trial would have been futile after the trial court overruled defense counsel’s objection before opening argument because the jury already saw the photograph.
The trial court overruled Ponce’s objection to admission of the photograph on relevance and Evidence Code section 352 grounds. The court ruled it was admissible subject to the district attorney laying a proper foundation. Although counsel’s opening arguments are not included in the reporter’s transcript, Ponce asserts and the Attorney General does not dispute, the district attorney showed the jury the photograph during opening argument. We agree with Ponce an objection to admission of the photograph would have been futile because the jury already saw the photograph. (People v. Carrillo (2004) 119 Cal.App.4th 94, 101 [objection futile where it would not have cured harm].)
Relying on numerous cases evaluating the admission of evidence subject to Evidence Code section 352 claims, Ponce contends admission of the photograph during the district attorney’s opening statement and its case-in-chief was error because the photograph was irrelevant to any issue in the case and it was introduced to elicit sympathy for the victim. His claims are unpersuasive.
The trial court did not abuse its discretion in admitting the photograph because it was relevant and was not subject to exclusion under Evidence Code section 352. The photograph was relevant to show the jury German’s size and stature. The jury was instructed on self-defense and imperfect self-defense. He portrayed German as a heavy drinker who became violent when he drank. The jury observed Ponce during trial, and a photograph of German helped the jury evaluate Ponce’s defenses.
Additionally, the probative value of the photograph was not substantially outweighed by a substantial danger of undue prejudice. We have seen the photograph, and we cannot conclude it would have caused the jury to prejudge Ponce. The picture is a garden variety photograph of a father and daughter at a playground. The photograph was not the only evidence German had a daughter, and any sympathy the jury might have felt for German, despite the flaws testified to by those who knew him, was caused by the fact he was shot at point blank range over a neighborhood dispute. The trial court properly exercised its discretion pursuant to Evidence Code section 352 and we cannot say admission of the photograph was an abuse of discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.