Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court Los Angeles County Super. Ct. No. NA058984 of Los Angeles County, Richard R. Romero, Judge.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Michael C. Keller and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Jesus M. Soto (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of first degree murder (Pen. Code, § 187, subd. (a)), attempted murder (§§ 664/187, subd. (a)), carjacking (§ 215, subd. (a)), and assault by means of force likely to produce great bodily injury and with a deadly weapon (§ 245, subd. (a)(1)). The trial court sentenced defendant for the attempted murder to a determinate state prison term of nine years and for the murder to a consecutive indeterminate prison term of 25 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that (1) the trial court abused its discretion by denying his eve-of-trial motions for a continuance and for the appointment of a defense expert, and the error is of constitutional dimension; (2) the limitations placed on defense testimony from the identification expert constituted an abuse of discretion, and the error is of constitutional dimension; and (3) there is Cunningham error (Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 860] (Cunningham).)
We conclude that the contentions lack merit and affirm the judgment.
FACTS
I. THE PEOPLE’S CASE-IN-CHIEF
Shortly after midnight on October 26, 2003, Mary Simon (Simon) parked her Nissan northbound in the alley behind her friend Amanda Wieland’s (Wieland) upper rear apartment on Grand Street in Long Beach. Simon was with her fiancé, Joel Hyde (Hyde), and Wieland, and they entered Wieland’s apartment to obtain some photographic equipment that Hyde had been storing there. Simon left her car keys on the Nissan’s seat. While they were upstairs, Simon heard the noise of a car starting coming from the alley. From Wieland’s balcony, Simon looked into the alley. She saw defendant backing her Nissan southbound below her. She saw his face for about five seconds. Simon and her companions ran downstairs.
Unaware of whom might be driving the Nissan, and thinking it was probably a neighbor attempting to access a garage, Hyde and Wieland walked into the middle of the alley. The carjacker, whom Simon later identified as defendant, stopped, revved the Nissan’s motor, and drove the Nissan directly into Hyde and Wieland, accelerating quickly forward down the alley from a stop. Wieland hit the windshield and was tossed aside in the alley; Hyde hit the Nissan and hung on. Moments later, he was found near death several blocks away lying on the street.
No one witnessed how Hyde ended up in the street. It appeared that the carjacker had deliberately side-swiped several parked cars and rammed into another parked car attempting to dislodge Hyde from the Nissan.
Hyde died soon thereafter as a result of blunt force injuries. The Nissan was abandoned a block beyond where the carjacker had accelerated into the parked cars. A bystander described a person he saw running in the street away from the Nissan as an African-American male with a dark complexion. At trial, the bystander testified that the male could have been either Hispanic or African-American.
The issue at the trial was identification. Simon claimed that she had a good opportunity to observe the carjacker from the balcony and later, as the carjacker drove into Hyde and Wieland, from the side of the alley. Simon gave the police a physical description of the carjacker. Hearing the description, Officer John Gibbs recalled that earlier that night, between 10:00 and 11:00 p.m., in the same general area, he had received a radio call concerning defendant from defendant’s parents. The parents had asked for police assistance to remove their son, defendant, from their property. Officer Gibbs knew who defendant was, concluded that defendant bore a resemblance to Simon’s general physical description, and told the detectives about the call.
Using a police computer program at the station, one of the detectives immediately prepared a six-pack photographic display containing defendant’s photograph. Thus, shortly after the carjacking, Simon was shown a photographic display, and she identified defendant as the carjacker.
At trial, Simon explained that she had had no difficulty making her identification. She explained that she was an art student and a painter, and she took classes in drawing the human form. When she had observed defendant and his face, she had focused on the characteristics of his eyes. These specific observations had assisted her identification. Simon said that she had identified defendant at the preliminary hearing and during some initial proceedings in the case. (Defendant was convicted upon a retrial after the initial jury deadlocked.) She identified defendant in court and was certain that he was the carjacker.
II. THE DEFENSE
Defendant presented an alibi defense, and his trial counsel argued misidentification. Two of defendant’s friends testified that at about 11:50 to 11:55 p.m. on October 25, 2003, they were with defendant at “Boy’s” residence, which was in Signal Hill. Immediately thereafter, they dropped defendant off at Vince Sepulveda’s residence at 17th and Temple Streets in Long Beach. One of these friends and Sepulveda testified that they saw defendant again at Sepulveda’s at about 2:00 a.m.
Defendant had a defense identification expert, a psychologist, Dr. Kathy Pezdek, testify to the many factors that might affect the reliability of an eyewitness identification.
Defendant introduced the results of the deoxyribonucleic acid (DNA) analysis conducted by the Long Beach Police Department’s criminal laboratory. George Hou (Hou), a police criminalist and a DNA expert, testified that he had taken a limited, extracted sample that had been previously removed from the Nissan’s gearshift knob. He had analyzed that sample to determine the identity of any contributors. He discovered only Simon’s DNA. On the gearshift knob of the Nissan, he located the DNA of a minor male contributor. However, the extracted sample was insufficient to attempt to identify that person. Hou testified that his analysis definitely excluded defendant and Hyde as contributors.
During cross-examination, the prosecutor elicited from Hou that it was possible that the stronger or identical indicators of Simon’s DNA may have masked any indication that defendant was the minor male contributor.
III. THE REBUTTAL
In rebuttal, the detective impeached defendant’s alibi witnesses with their earlier statements to the detective, which contradicted the alibi they testified to at trial.
DISCUSSION
I. THE MOTIONS FOR CONTINUANCE AND FOR A DEFENSE DNA EXPERT
Defendant contends that the trial court abused its discretion by denying his motions to appoint a defense DNA expert and to continue the trial for further discovery of “exculpatory” raw DNA data and for trial preparation. He asserts that the trial court’s refusal to grant a continuance and to appoint the defense expert violated his constitutional rights to due process and equal protection (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15) and to the effective assistance of counsel and a trial by jury (U.S. Const., 6th Amend.; Cal. Const., arts. I, § 16).
We find no abuse of discretion, and defendant was not denied any constitutional rights.
A. Background
Defendant’s attorney, James Hodges, claimed to be a 30-year practitioner who had never represented a defendant during a trial at which DNA was at issue. At the arraignment on the information in April 2004, trial counsel was appointed to represent defendant. The initial trial was held in May 2005. The jury deadlocked, and the trial court declared a mistrial. On June 10, 2005, the case was reset for pretrial conferences from time to time until December 5, 2005, when it was again scheduled for trial. The retrial was continued to January 4, 2006, and to February 2, 2006. Jury selection commenced on February 2, 2006. The same bench officer presided over the initial trial and the retrial.
1. The Motions to Continue and to Appoint An Expert
When the trial court inquired as to readiness on February 2, 2006, the trial court noted that trial counsel had filed a written motion for a continuance. Trial counsel informed the trial court that he had spoken to a DNA expert, Bill Thompson, as well as to an attorney who specializes in DNA evidence. Trial counsel said that he wanted discovery of the raw DNA data and the subjective analysis of that raw data, which these professionals had informed him was critical to evaluating the reliability of the prosecution’s analysis of the DNA evidence. At that point, trial counsel also served a discovery motion on the prosecutor seeking that information.
The trial court inquired about the exculpatory value of the DNA evidence.
Trial counsel said that he wanted Bill Thompson appointed as a defense expert and that he needed to learn how to present the DNA evidence on direct examination. He explained that Thompson had offered to give him a “crash course” on DNA. Trial counsel said that the prosecutor had just informed him that she was not calling the criminalist, Hou, who had presented the DNA test results during the initial trial. Trial counsel asserted that the prosecutor had failed to subpoena her DNA witnesses, and he needed a continuance to do so. He wanted Thompson to conduct an analysis of the prosecution’s DNA evidence, an analysis that trial counsel claimed might disclose the identity of the perpetrator. Trial counsel reminded the trial court that the prosecution analysis had discovered Simon’s DNA on the gearshift knob, as well as that of another person, and that the unidentified minor contributor was someone other than defendant.
The prosecutor replied that contrary to trial counsel’s claims, the prosecution DNA witnesses were available and that she regarded the defense motions to continue and to appoint a defense expert as a “stall tactic.” She questioned whether a reanalysis of the DNA data would assist defendant. She said that her experts had excluded defendant as having contributed any DNA to the samples obtained from the Nissan’s interior. During the analysis, the prosecution experts had recovered only one random allele, “the 11.” The prosecutor gave her opinion that no one would have been able to identify a perpetrator from the DNA information obtained from the sample. The sample was limited qualitatively and quantitatively, and the sample’s analysis had disclosed only limited information about the minor contributor.
The trial court told trial counsel that he did not need a crash course on DNA from a defense expert, and that if trial counsel wished to present DNA testimony from the prosecution’s criminalist, he would be doing so without a prosecutorial challenge as to that evidence’s admissibility.
The prosecutor agreed and explained that she would raise only those issues she had raised during the initial trial.
The trial court informed trial counsel that while DNA evidence can be complex, it was not complex in this case. The trial court suggested to trial counsel that if he was concerned about how to effectively present Hou’s direct examination, all he needed to do was to review Hou’s direct examination by the prosecutor during the previous trial.
Trial counsel protested that he did not feel competent to present the testimony. The trial court replied, “Let me put it this way: if it’s too complex for you, it’s too complex for the twelve people in there,” referring to the jury. The trial court said, “So the motion is denied.”
Trial counsel said that he hoped he would be prepared to present the DNA evidence during the defense. The trial court replied that it was confident that trial counsel would be prepared in time. The prosecutor provided trial counsel with Hou’s telephone number.
2. Hou’s Testimony during Retrial
During the defense, trial counsel called Hou to present the results of the DNA analysis of the samples taken from several locations inside the Nissan, particularly the No. 5 location, the gearshift knob. Hou testified that coworker Howard had extracted the DNA from the sample taken off the gearshift knob. Hou said that he had obtained the “quantified” DNA from Howard and performed the amplification step and the typing step of a DNA analysis, which involved the use of genetic analyzer instruments. For the sample taken from the gearshift knob, Hou was able to get a “partial profile.” Hou explained that the test disclosed the presence of the DNA of two persons. Hou explained that the “major contributor” of the DNA on the gearshift knob was Simon. The “minor contributor” was a male, but Hou could determine nothing more about that person. Hou was unequivocal in giving his opinion that the No. 5 sample excluded defendant and Hyde as contributors. Hou said that when he analyzed the samples for DNA, he had used the standardized procedures used for all DNA testing.
3. The Midtrial Request for Discovery
After Hou testified, trial counsel complained that the prosecutor still had not provided him with the raw DNA data that he had requested on February 2, 2006. Trial counsel claimed that he needed that information to examine Howard, the criminalist who had extracted the DNA from the sample taken from the Nissan by a technician. The prosecutor said that she was unaware that trial counsel still wanted the raw DNA data after he had been denied a continuance and the appointment of an expert. She told the trial court that she would contact her DNA experts to see whether the data was available, but a copy of the CD rom in question might cost $400.
The trial court commented that Hou had already testified during the trial without any objection from the prosecution about the admissibility of his testimony about the extraction process and that the DNA results excluded defendant. The prosecutor and the trial court questioned whether trial counsel had any use for the raw DNA data at this late juncture as it appeared that Howard was no longer a necessary witness.
Trial counsel nevertheless insisted that he wanted the CD rom of the raw DNA data and that there was a chart of peaks and valleys that was important to the defense analysis of Hou’s testimony. The prosecutor repeated that she would contact her experts about the information. The prosecutor commented that she did not know what trial counsel was going to do with the CD rom of raw data because its interpretation required special software and an expert to perform the analysis.
The trial court directed the prosecutor to obtain the discovery.
Thereafter, trial counsel did not call Howard as a witness or put on further DNA evidence. When the trial came to a close, trial counsel made no complaint of a lack of discovery or that he was unprepared to present the defense. Nor did he request a further continuance.
On March 14, 2006, immediately prior to sentencing, trial counsel put on the record that he had just received the raw DNA data from the prosecutor. As one ground for a new trial, he asserted that the prosecutor had failed to timely turn over the requested DNA data. He also complained in his written motion for new trial that he was denied a “continuance to prepare for DNA evidence to be presented to the jury on the defense case . . . .”
Trial counsel submitted the motion for a new trial without argument, and the trial court denied the motion without comment.
B. The Relevant Legal Principles
We review the trial court’s rulings on the motion to continue and on the motion for an appointment of an expert for an abuse of discretion. (People v. Beames (2007) 40 Cal.4th 907, 920-921 [motion to continue]; People v. Smithey (1999) 20 Cal.4th 936, 1011-1012 (Smithey) [the same]; People v. Alvarez (1996) 14 Cal.4th 155, 234 [motion for the appointment of expert]; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321 [the same].)
1. The Motion to Continue
In determining whether there is good cause for a continuance, the “‘“trial judge . . . must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on . . . witnesses . . . and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.”’” (People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106; accord, People v. Panah (2005) 35 Cal.4th 395, 423; People v. Roybal (1998) 19 Cal.4th 481, 504.) Trial counsel’s diligence may also be considered. (See People v. Jenkins (2000) 22 Cal.4th 900, 1038-1040.) Discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th 596, 646.)
A denial of due process occurs only if, considering the circumstances of the case, the trial court’s ruling was arbitrary, capricious, or irrational. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013; accord, Smithey, supra, 20 Cal.4th at pp. 1011-1012; People v. Jones (1998) 17 Cal.4th 279, 318.)
2. The Right to Reasonably Necessary Ancillary Defense Services
The right to counsel guaranteed by both the federal and state Constitutions includes the right to effective counsel, and thus also includes the right to reasonably necessary defense services, such as defense experts. (People v. Blair (2005) 36 Cal.4th 686, 732 (Blair); Corenevsky v. Superior Court, supra, 36 Cal.3d at pp. 319-320, fns. omitted [defense expert].) The equal protection clause of the Fourteenth Amendment also requires such an appointment. (Blair, supra, at p. 733; Torres v. Municipal Court (1975) 50 Cal.App.3d 778, 785.) However, the right to ancillary services arises only when a defendant demonstrates the appointment is ‘“reasonably necessary”’ for his defense by reference to the general lines of inquiry that he or she wishes to pursue. (Blair, supra, at p. 733; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1085.) Thus, on review, the critical question is whether a defendant has had reasonable access to the ancillary services reasonably necessary for his defense. (Blair, supra, at p. 733.)
3. Third-Party Culpability Evidence
“[T]o be admissible, evidence of the culpability of a third party offered by a defendant [must] demonstrate that a reasonable doubt exists concerning his or her guilt, [and] must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.” (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
4. The Defendant’s Right to Present a Defense
Under the state and federal Constitutions, a criminal defendant has a right to present a defense, including his version of the facts and witnesses who will testify on his behalf. (Washington v. Texas (1967) 388 U.S. 14, 19; People v. Jones (1990) 51 Cal.3d 294, 317; In re Martin (1987) 44 Cal.3d 1, 30.) In light of this constitutional standard, the trial court may not apply evidentiary rules mechanistically to deprive a defendant of the opportunity to present legitimate exculpatory evidence. (Crane v. Kentucky (1986) 476 U.S. 683, 690-691 (Crane); Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.) “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v Mississippi, supra, [410 U.S. 284], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citations], the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ [Citations.] . . . We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. [Citations.] . . . In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial testing.’ [Citations.]” (Crane, supra, 476 U.S. at pp. 690-691.)
However, the United States Supreme Court has held that the right to present a defense is not unlimited. (Crane, supra, 476 U.S. at pp. 690-691; Chambers v. Mississippi, supra, 410 U.S. at pp. 302-303.) Subject to the constitutional guarantee, a trial court retains wide latitude to exclude evidence that is repetitive or only marginally relevant or poses an undue risk of prejudice or confusion of the issues. (Crane, supra, at pp. 689-690.) The California Supreme Court has also held: “‘As a general matter, the ordinary rules of evidence do not impermissible infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.] . . . .’” (People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834-835.) Furthermore, “‘[t]he trial court has broad discretion in determining the relevance of evidence [citations] . . . .’” (Smithey, supra, 20 Cal.4th at p. 973, quoting People v. Scheid (1997) 16 Cal.4th 1, 14.)
C. The Analysis
On appeal, defendant claims that prior to trial, he asked for the continuance because the prosecutor at the last minute informed him that she had decided not to present the prosecution’s DNA evidence. Trial counsel wanted a continuance as he claimed that he needed more time to prepare for his direct examination of the DNA expert. Trial counsel also now wanted a defense DNA expert to review the raw DNA data in order to present the exculpatory character of the data. Trial counsel asserted that the exculpatory nature of the DNA evidence was not simply that the DNA evidence excluded defendant as a contributor. Rather, a reanalysis might result in the identification of the carjacker, and his request implied that such an identification would result in defendant’s exoneration. On appeal, defendant argues that trial counsel’s proffer was sufficient to compel the appointment of the expert and the granting of a continuance.
Applying the legal principles set out above, defendant’s arguments fail to persuade us. Trial counsel did not explain to the trial court why suddenly, on the eve of trial, the DNA testimony suddenly took on a whole new significance simply because it was the defense, and not the prosecution, that was putting on such testimony. (People v. Snow (2003) 30 Cal.4th 43, 73-75 [counsel had ample time to prepare and failed to adequately explain a lack of diligence]; People v. Gray (2005) 37 Cal.4th 168, 225 [given the months counsel had to prepare for trial, counsel’s assessment of the state of his readiness was exaggerated and a continuance was unnecessary]; see People v. Morrison (2004) 34 Cal.4th 698, 715 [a lack of reasonable defense diligence will defeat a Brady v. Maryland (1963) 373 U.S. 83 (Brady) claim].) Further, defendant cannot show an abuse of discretion. The requested DNA information in the context of the entire trial evidence was neutral with respect to guilt and innocence, and not “exculpatory.” (People v. Roybal, supra, 19 Cal.4th at p. 505 [DNA test results so inconclusive that they would not have harmed defendant’s case]; see People v. Hoyos (2007) 41 Cal.4th 872, 917-920 [in a Brady context, the court discusses what is “favorable” and “material” evidence].)
Defendant’s claims presume that the true culprit in the case could have been ascertained despite a DNA sample that was inadequate to produce the 13 loci necessary to compare the DNA information obtained to the relevant national database. His claims also presume that the carjacker’s DNA is included within that national data base. This court concludes that any hope defendant had of developing exonerating third-party culpability evidence was entirely speculative. (People v. Beeler (1995) 9 Cal.4th 953, 1003-1004; see People v. Morrison, supra, 34 Cal.4th at p. 711.) Also, trial counsel’s failure to seek sanctions or a continuance when he failed to obtain the requested raw DNA information by the completion of the evidentiary portion of the trial is fatal to a claim of prejudicial belated discovery. (Morrison, supra, at p. 714 [the failure to make proper objections, request appropriate sanctions, or seek a continuance in the matter is fatal to a due process contention on appeal] see People v. Carpenter (1997) 15 Cal.4th 312, 386; People v. Pinholster (1992) 1 Cal.4th 865, 941 [it is defendant’s burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm].) On this record, we conclude that defendant has not demonstrated that he was entitled to a continuance. Nor has he shown that the appointment of an expert would have done anything more than merely confirm the results of prosecution’s serology testing.
Defendant’s claims that he was denied constitutional rights is dependent upon finding an abuse of discretion. As we do not so conclude, there is no error that serves as the predicate for defendant’s claims of the denial of constitutional rights, and the claims fail. (People v. Roybal, supra, 19 Cal.4th at p. 506, fn. 2.)
For the first time on appeal, defendant claims that the trial court’s asserted errors violated his constitutional rights to due process and to equal protection (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15) and to the effective assistance of counsel and to his right to a trial by jury (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16). “As a general matter, no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.” (People v. Yeoman (2003) 31 Cal.4th 93, 117; see also id. at p. 133; accord, People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6.) However, any further constitutional claims that do not fall into the category described by the Yeoman court are forfeited as they were not raised in the trial court. (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida) [to the extent, if any, that defendant may be understood to argue that due process required exclusion of the evidence for a reason different from his trial objection, the claim is forfeited]; accord, People v. Geier (2007) 41 Cal.4th 555, 611; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 997, 1000, 1024, 1029, 1031, 1055; People v. Chaney (2007) 148 Cal.App.4th 772, 778-780 [Partida has not “broadened” the general rule requiring a timely and specific objection to evidence].)
II. LIMITING THE TESTIMONY OF THE IDENTIFICATION EXPERT
Defendant contends that the trial court prejudicially erred by precluding him from “fully presenting qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification in this case.”
We ordered the trial exhibits transmitted and examined People’s exhibit 29, a colored Xerox copy of the six-pack photographic display that was used during the identification procedure.
A. Background
1. The Pretrial Hearing
During an Evidence Code section 402 hearing, the prosecutor objected to the prospective testimony of the defense identification expert and psychologist, Dr. Pezdek. The prosecutor complained that during the initial trial, the expert’s testimony had been broader than permitted by law. The prosecutor sought to have excluded the doctor’s testimony regarding Project Innocence and the DNA studies that Dr. Pezdek had cited previously, as well as Dr. Pezdek’s opinion on the reliability of the six-pack identification procedure the detectives had used in this case.
We granted defendant’s request to augment the record with Dr. Pezdek’s testimony during the initial trial. There, Dr. Pezdek set out the factors that generally affect the reliability of eyewitness identifications. She discussed the studies supporting the factors and integrated specific examples from the current case and other unrelated examples into her testimony so as to illustrate the factors. She repeatedly commented specifically on what Simon may or may not have perceived or had been thinking when she saw defendant driving her Nissan. The doctor also commented specifically on the reliability of the present photographic identification procedure, telling the jury that in her opinion the photographic display was potentially unreliable because only two other subject photographs resembled Simon’s initial description of the carjacker.
The trial court read the decisions in People v. Sandoval (1994) 30 Cal.App.4th 1288 (Sandoval) and People v. Brandon (1995) 32 Cal.App.4th 1033 (Brandon). During a later hearing on the same issue, the prosecutor again asked the trial court to prevent Dr. Pezdek from commenting on the specific facts of the case and to exclude any reference to the Project Innocence Study. In particular, the prosecutor objected to Dr. Pezdek being permitted to give opinions such as, “Based on these factors in this case, it’s my opinion it would be highly unlikely [the eyewitness] could make an accurate identification.” Trial counsel explained that he intended to ask Dr. Pezdek about “what the various factors would be in a photographic lineup with respect to the filler[] [photographs] and with respect to the various [persons depicted.]” He said that “We’re not going to ask [Dr. Pezdek] whether or not Mary Simon made or did not make an accurate identification.”
The prosecutor objected to the use of hypothetical questions. She argued that Simon was the only eyewitness in the case, and the use of hypothetical questions might confuse the jury. She asserted that the determination of the accuracy of the instant identification procedure was solely within the province of the jury.
Trial counsel said, “We are not going to ask that,” and “[w]e’re [just] going to ask her to list the factors like she did last time.”
The trial court ruled, as follows: “Under Sandoval, I believe that the District Attorney is correct that the expert can testify in general as to the factors that the jury can use to assess the reliability or accuracy of the identification made by an eyewitness[,] but cannot refer to the particular evidence in this case, the particular witnesses in the case, or substitute a hypothetical.” It ruled that testimony about the Project Innocence Study would be admitted, so long as no reference was made to jury verdicts and convictions being overturned.
2. Dr. Pezdek’s Trial Testimony
On retrial, Dr. Pezdek testified that currently there was an ongoing study called Project Innocence. In that study, there were 180 cases involving eyewitness identifications that were examined in the light of later DNA test results. The study had discovered that in 75 or 80 percent of the cases where the DNA test results exonerated a defendant, there were documented misidentifications.
The doctor explained to the jury that the human brain does not retain a video-camera-like memory of events. Rather, when persons make identifications, they tend to remember “just general information,” not “specific detail.” She testified that memory gets worse over time and that persons who have so-called photographic memories are extremely rare. She then set out a number of other factors that affect the reliability of eyewitness identifications.
In her testimony, the doctor explained that studies showed that in order to construct a fair, unbiased photographic display, the filler photographs presented in a photographic display should be based on the description given of the suspect. The display’s preparer should not use fillers based on a resemblance to the police suspect. The doctor said that with an improperly-composed display, the odds of selecting the police suspect randomly increased significantly because the display is comparable to a multiple-choice test. When certain persons are obviously not the perpetrator, the odds increase of a mistaken identification. It was important for the fact finder to make sure that the eyewitness was selecting the perpetrator from memory and that the eyewitness was not playing “the odds” that the person selected presented the closest match to what the person recalled about the perpetrator.
There was another effect known as “garden-pathing” an eyewitness. For example, the eyewitness may have described no tattoo, the police suspect possesses a tattoo, and the photographic display contains only persons with tattoos. In such a case, the eyewitness may jump to the conclusion that the perpetrator had a tattoo that the eyewitness had missed. The eyewitness may mistakenly identify someone who is not the perpetrator as that person has a tattoo. Another effect is “experimenter expectancy.” The doctor suggested that the person conducting the photographic display may give nonverbal cues to an eyewitness that influence the eyewitness’s selection of a photograph. To avoid this effect, a police officer who does not know the identity of the police suspect should conduct the identification procedure.
Also, a jury should not make the assumption that certain persons are more capable of accurate eyewitness identifications than others on the basis of experience. Studies disclose that experience does not increase the accuracy of eyewitness identifications. For example, studies show that artists and police officers may be no more accurate in identifying a perpetrator than persons who lack their experience.
During cross-examination, the prosecutor pointed out that the statistics referred to in the Project Innocence Study were insignificant because the 130 or so mistaken identifications occurred in cases drawn from all over the nation and over a number of years. The prosecutor questioned Dr. Pezdek about the special abilities testimony that the doctor gave on direct examination. The doctor agreed that the eyewitnesses who had performed well at recalling identity were the eyewitnesses who had focused during their initial observation on the test subjects’ individual features. Dr. Pezdek reiterated that the studies show that misidentifications are more likely to occur where the officer preparing the lineup bases his choice of fillers on the police suspect, rather than on the description initially obtained about the perpetrator. The doctor agreed that that principle should be qualified. This is, where there is a limited description of the perpetrator, or when the description of the perpetrator differs significantly from that of the suspect, the appropriate procedure is to use fillers that resemble the police suspect in his significant features.
3. The Objections Raised During Dr. Pezdek’s Cross-Examination
During the prosecutor’s cross-examination, trial counsel argued that the prosecutor had used several case-specific hypotheticals during cross-examination and that the cross-examination had “opened the door” to the trial counsel’s use of similar fact-specific hypotheticals on redirect examination.
The trial court disagreed with trial counsel’s description about what had occurred during cross-examination. It ruled that the prosecutor’s cross-examination had not “open[ed] any doors.” Trial counsel complained that the prosecutor was able to ask hypothetical questions and that he was not permitted to do so. The trial court pointed out that the witness herself had interjected the hypotheticals into evidence, and the prosecutor was entitled to meet that testimony with appropriate cross-examination. The trial court clarified that it was not precluding all hypotheticals, just those based on the specific facts of the case.
B. The Relevant Legal Principles
1. Eyewitness Identifications
In People v. Sanders (1995) 11 Cal.4th 475, 508 (Sanders) the court summarized its earlier decision in People v. McDonald (1984) 37 Cal.3d 351 (McDonald): “In People v. McDonald, supra, 37 Cal.3d 351, [the California Supreme Court] acknowledged that scholarly research had uncovered a set of psychological principles concerning eyewitness identifications that had become widely accepted in the scientific community. [The court] concluded that the Kelly-Frye rule was inapplicable to expert testimony on psychological factors affecting eyewitness identification. [(People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.)] [The court] also observed that the body of information available on psychological factors bearing on eyewitness identification was ‘“sufficiently beyond common experience” that in appropriate cases expert opinion thereon could at least “assist the trier of fact” (Evid. Code, § 801, subd. (a)).’ (37 Cal.3d at p. 369, fn. omitted.)”
“[The court] held that, in the appropriate case, exclusion of expert testimony concerning eyewitness identification would constitute error. (37 Cal.3d at p. 377.) [The court] stressed that ‘[w]hen an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.’ (Ibid.) [The court] also emphasized, however, that ‘the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court’s discretion’ and that such evidence ‘will not often be needed.’ (Ibid.)” (Sanders, supra, 11 Cal.4th at pp. 508-509.)
The decision in McDonald was disapproved on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914.
Evidence Code section 801, subdivision (a), limits expert opinion evidence to that which is “[r]elated to a subject . . . sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .” Evidence Code section 801, however, “does not permit the expert to express any opinion he or she may have. [Citation.] ‘“Undoubtedly there is a kind of statement by the [expert] witness which amounts to no more than an expression of his general belief as to how the case should be decided . . . . There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision.”’ [Citation.]” (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
“A trial court’s determination to admit [or to exclude] expert evidence will not be disturbed on appeal absent a showing that the [trial] court abused its discretion in a manner that resulted in a miscarriage of justice. [Citations.]” (People v. Robinson (2005) 37 Cal.4th 592, 630.)
2. The Exclusion of Evidence Constituting the Defense
In People v. Babbitt (1988) 45 Cal.3d 660, the court explained that ‘“[i]n Chambers v. Mississippi[,] [supra, 410 U.S. 284], it was held that the exclusion of evidence, vital to a defendant’s defense, constituted a denial of a fair trial in violation of constitutional due process requirements. [¶] . . . We do not mean to imply, however, that a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence . . . .’ [Citations.]” (People v. Babbitt, supra, at pp. 684-685.) “[N]either due process nor [the decision] Chambers v. Mississippi, [supra,] has led the high court to ‘question[] the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability -- even if the defendant would prefer to see that evidence admitted.’ [Citations.]” (People v. Yeoman, supra, 31 Cal.4th at pp. 141-142.)
C. The Analysis
Examining defendant’s contention in light of the legal principles set out above, we conclude that the trial court properly exercised its discretion. Dr. Pezdek was permitted to testify generally pursuant to McDonald to all the factors that could have affected the reliability of Simon’s eyewitness identification. The doctor went into detail with respect to how eyewitnesses perceive and recall information and informed the jury about certain misconceptions that the jurors might have about the reliability of eyewitness identifications. She discussed how the jury should consider certain aspects of eyewitness identifications.
The trial court determined that expert comment on the specifics of the Simon’s identification, such as whether the photographic display was properly prepared with fillers, was a subject likely to be fully known and understood by the jury. Thus, the trial judge limited Dr. Pezdek’s comments on this and other case-specific subjects. As the defense was permitted to fully explore the reliability of the identification and to educate the jury, where necessary, on how to evaluate the eyewitness identification testimony, we conclude that there was no abuse of discretion by excluding specific comment by hypothetical. On the subject of eyewitness identifications, we agree with the decision in Sandoval, supra, 30 Cal.App.4th at page 1298, that a trial court has wide discretion in determining whether expert testimony is admissible on a particular subject and if it will be helpful to the jury. (See People v. Killibrew, supra, 103 Cal.App.4th at p. 651.)
Further, the trial court’s rulings did not result in violations of defendant’s constitutional rights. The exclusion of the evidence was ordered pursuant to well-established state evidentiary rules. During the trial, defendant was permitted to use the general expert identification testimony to fully challenge the eyewitness identification, a crucial issue in the case. (See Sanders, supra, 11 Cal.4th at p. 510, fn. 3.) Prohibiting hypothetical questions merely excluded testimony that was cumulative of the defense identification testimony presented and did not impair defendant’s right to present a defense. (People v. Pollack (2004) 32 Cal.4th 1153, 1173 [excluded expert testimony cumulative of other evidence and expert testimony in the case]; People v. Hawthorne (1992) 4 Cal.4th 43, 58-59 [the proper exclusion of hearsay evidence on a minor point does not impair the defendant’s constitutional right to present a defense].) Nor did the exclusion of the opinion testimony under the state’s rules of evidence work any “fundamental unfairness” or amount to a denial of due process in their particular operation. (Ibid.)
The decision in McDonald does not specifically address the use of hypothetical questions rooted in the facts of the case and leaves the admissibility of such expert testimony to the discretion of the trial court. In Brandon and Sandoval, the trial courts excluded specific comment on the fairness of the particular photographic displays or lineups presented to the eyewitnesses. The reviewing courts agreed that a trial court has the discretion to exclude such testimony. These courts explained that the fair selection of persons in a lineup is an issue likely to be fully known and understood by the jury, and for that reason “completely within the province of the trier of fact to resolve.” (Brandon, supra, 32 Cal.App.4th at p. 1053; Sandoval, supra, 30 Cal.App.4th at p. 1298.) The courts held that the limitation of expert testimony to “general factors that might have affected the accuracy” of the identifications was well within the trial court’s discretion. (Brandon, supra, at p. 1053.)
Moreover, the trial court properly exercised its discretion by determining that the prosecutor did not ‘“open the door”’ so as to permit defense counsel on redirect examination to question Dr. Pezdek using the previously-forbidden hypothetical questions. Questions designed to elicit testimony which is irrelevant to any issue in the case should be excluded by the trial court, even where opposing counsel has been allowed, without objection, to introduce evidence upon the subject. (People v. McDaniel (1943) 59 Cal.App.2d 672, 677; accord, People v. Gambos (1970) 5 Cal.App.3d 187, 192; see also People v. Wells (1949) 33 Cal.2d 330, 340, disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 321; People v. Parrella (1958) 158 Cal.App.2d 140, 147.) Regardless of the method by which the prosecutor cross-examined Dr. Pezdek, the trial court had the discretion to rule that the use of hypothetical questions was inappropriate at any point in the case.
The decision in Wardius v. Oregon (1973) 412 U.S. 470, 474, is not helpful to defendant. That court addressed only issues of the proper state rules for reciprocal discovery in criminal cases, not the admissibility of redirect examination or expert testimony.
III. CUNNINGHAM ERROR
At sentencing, the trial court exercised its discretion and imposed an upper determinate term of nine years in state prison for Wieland’s attempted murder. On appeal, defendant contends that the imposition of such a term in the absence of a jury trial with proof beyond a reasonable doubt is reversible error entitling him to have his term reduced to a middle term.
We disagree.
A. Background
At sentencing, the trial court read and considered a preconviction probation report dated December 4, 2003. It disclosed that defendant, age 26, had an aggravated criminal history. In 1995, the juvenile court had declared defendant to be a ward of the juvenile court based on findings of a violation of Vehicle Code section 10851, subdivision (a). The juvenile court sustained another petition for burglary (§ 459). As an adult, in January 1997, defendant was convicted of misdemeanor burglary and granted probation. His probation was subsequently twice revoked, and he was required to serve short jail terms. In February 1997, he was convicted of misdemeanor inflicting corporal punishment on a coin habitant and granted probation. Probation was revoked and reinstated once thereafter. In April 1997, he was convicted of misdemeanor assault (§ 245, subd. (a)(1)), obstructing a peace officer (§ 148), and providing false identification to a peace officer (§ 148.9, subd. (a)). He was granted probation on condition that he serve 60 days in jail. In August 1997, he was convicted of displaying the driver’s license of another to a peace officer (§ 148.9, subd. (a).) In December 1997, he was convicted of misdemeanor burglary and was granted probation on condition that he spend 180 days in jail.
In April 1999, he was convicted of driving with a suspended license (Veh. Code, § 14601) and granted probation. In September 1999, he was convicted of a felony receiving stolen property (case No. NA042091) and granted probation on condition that he serve 180 days in the county jail. In July 2000, he was convicted of driving with a suspended driver’s license. (Veh. Code, § 14601.) In July 2000, he was convicted of a felony violation of Vehicle Code section 10851, subdivision (a) (case No. NA045384) and placed on probation on condition that he spend 365 days in the county jail. In July 2001, he was convicted of possessing a controlled substance for sale (case No. NA049126) and committed to state prison for 16 months. In a different case, in July 2001, he was convicted of a misdemeanor, possessing less than an ounce of marijuana. Probation was revoked in case Nos. NA042091 and NA045384, and the trial court imposed concurrent prison terms of 16 months. In 2002 and 2003, he was found in violation of parole in case No. NA049126 and was recommitted to state prison.
At sentencing, the trial court found various factors in aggravation based on the facts of the attempted murder. It also said that defendant had “prior criminal conduct.” It balanced the factors in mitigation and aggravation and concluded that an upper-term was warranted. It then imposed an upper term of nine years for attempted murder and the indeterminate term of 25 years to life for the murder.
B. The Relevant Legal Principles
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), the high Court stated that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
In Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], the United States Supreme Court held that “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, at p. ___ [127 S.Ct. at p. 868].) The court invalidated the California DSL to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, at p. ___ [127 S.Ct. at p. 871].)
Section 1170, subdivision (b), of the DSL has since been amended in response to the Cunningham decision to provide that the trial court has the discretion, in the interests of justice, to impose any of the three terms provided by statute. (Stats. 2007, ch. 3, signed into law as an urgency measure on Mar. 30, 2007.)
Following Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. . . . [¶] . . . Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black, supra, at p. 813, fn. omitted.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
The court in People v. Sandoval (2007) 41 Cal.4th 825, 836-837, said: “The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-244.)”
For example, in Black, the court held that the record contained substantial evidence of ‘“prior convictions . . . [that were] numerous or of increasing seriousness.”’ It approved upper term sentencing as judicial fact finding is permissible where such a factor is supported by the record. (Black, supra, 41 Cal.4th at pp. 818-820 & fn. 9; see Apprendi, supra, 530 U.S. at p. 488; Jones v. United States (1999) 526 U.S. 227, 248.) Similarly, where the record supports the service of a prior prison term, that recidivist factor also permits judicial fact finding imposing an upper term sentence without the need for a jury trial. (Black, supra, at pp. 819-820.)
C. The Analysis
Apart from defendant’s juvenile adjudications, defendant had an adult history of numerous and increasingly serious felony convictions for unlawfully taking motor vehicles, burglary, and possessing a controlled substance for the purposes of sale. Defendant also had served a separate prison term following three felony convictions. The trial court relied on defendant’s serious criminal history in aggravation of the term. This record demonstrates two aggravating factors that permit judicial fact finding in conformity with the constitutional requirements set forth in Blakely and Cunningham , and there is substantial evidence in the record supporting reliance on such factors. (Black, supra, 41 Cal.4th at p. 818, fn. 7.) Because defendant has a serious history of recidivism and had served a prior prison term, the upper term sentence was the “statutory maximum,” and defendant was not entitled to a jury trial with proof beyond a reasonable doubt on the factors the trial court found in aggravation.
As we find no Blakely/Cunningham error, it is unnecessary to reach defendant’s claim that this court must reduce the upper nine-year to a seven-year middle term.
In the conclusion to his opening brief, defendant makes a claim of cumulative error. There is no error in this case to serve as the basis for a claim of cumulative error, and defendant’s trial was fundamentally fair. (See People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1066.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J CHAVEZ, J.
During trial, defendant did not move to exclude the photographic procedure on due process grounds that the identification was so unnecessarily suggestive so as to create a substantial likelihood of an irreparable misidentification. (People v. Cunningham (2001) 25 Cal.4th 926, 989-990 [stating the test for determining an unduly suggestive identification procedure and observing that a defendant’s failure to assert a timely objection results in a waiver of the issue].)
For example, Dr. Pezdek testified that her “sense in the present case” was that Simon saw the carjacker’s face for only the briefest period of time. The doctor said that “at various points . . . Simon was not very close to the person” and “more important[ly], . . . my sense is that the only lighting that was available . . . was a 40- or 45-watt bulb that was . . . behind a sign . . . .” She said that the lighting in the alley and the illumination on the carjacker’s face had to have been minimal. She said that Simon’s concern for her friends’ safety during the incident “would have been a major source of distraction” that likely affected the reliability of her identification. The doctor said, “I imagine, under the circumstances of a terrible event that happened, that [Simon had to be] under the highest level of stress that she probably ever experienced in her life.”
The doctor testified briefly about the Project Innocence Study. She said that the study involved proving various felons were factually innocent based on later DNA analysis. She said that in about 75 percent of the cases of exoneration, the convictions turned on eyewitness identifications. Dr. Pezdek’s conclusion from the study was that “there are more erroneous convictions based on eyewitness identification evidence than any other type of evidence that’s available.”