Filed 11/19/13 P. v Valentin CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JEREMY VALENTIN,

Defendant and Appellant.

 B244615

 (Los Angeles County

 Super. Ct. No. NA091099)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Charles D. Sheldon, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner and Ann Krausz, under 

appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Timothy M. 

Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Appellant Jeremy Valentin appeals from the judgment in which a jury convicted 

him of one count of second degree robbery in violation of Penal Code section 211,1a 

felony. The jury also found true the allegation that appellant personally used a firearm in 

violation of section 12022.53, subdivision (b). In a bifurcated trial, the trial court found 

true that appellant had served four prior prison terms pursuant to section 667.5, 

subdivision (b). The trial court sentenced appellant to a prison term of 13 years, 

consisting of the midterm of three years on the robbery count plus 10 years on the firearm 

enhancement. The trial court struck the prior prison terms.

Appellant contends that the trial court abused its discretion by precluding him 

from presenting expert testimony on eyewitness identification. We affirm.

FACTS

Prosecution Case

On December 26, 2011 around 7:30 p.m., Sergio Caraveo (Caraveo), the victim, 

was running in his neighborhood in San Pedro. Before stopping to drink from a water 

fountain at the intersection of South Crescent Avenue and West 21st Street, he saw 

appellant and another man sitting on the front porch of a house on South Crescent 

Avenue. When he finished drinking, Caraveo started stretching. Appellant grabbed 

Caraveo’s shoulder and told him he had a gun. Appellant held a gun to the right side of 

Caraveo’s head and ordered him to empty his pockets. Appellant then turned Caraveo 

around, so that they were facing each other about one foot apart. A streetlight was on, 

and Caraveo could see appellant’s face and that appellant had acne scars. Appellant was 

wearing blue jeans, a black jacket and a red hat.

Caraveo responded that he did not have anything in his pockets because he

had been running. Appellant said, “I don’t give a fuck where you just came from.”

Caraveo emptied his pockets and gave appellant his iPod, which was Caraveo’s 

Christmas present from the prior day. Appellant took the iPod and returned to the house

1 All further statutory references are to the Penal Code unless otherwise indicated.
3

where Caraveo had seen him on the porch. The man who had been with appellant on the 

porch acted as a lookout.

Caraveo went home, then drove back to South Crescent Avenue with his older 

brother and his cousin so that he could get the correct address of the house for the police. 

When he saw appellant and the other man on the porch, Caraveo said to his brother, “that 

was them.” While Caraveo waited for the police to arrive, appellant left the house on 

South Crescent Avenue and went through an alley. The other man also left the house.

Appellant was arrested on January 4, 2012, at the house on South Crescent 

Avenue while police were investigating a different incident. Without hesitation, Caraveo 

identified appellant in a six-pack photographic lineup on January 11, 2012. 

Defense Case

Appellant testified that on December 26, 2011, he was staying at the South 

Crescent Avenue house, which his friend Kim Larsen (Larsen) was renting. Between 

6:00 and 7:00 p.m., appellant was in the house having sex with a woman named 

“Bonnie.” When appellant started to leave the house sometime after 7:00 p.m., he 

walked past Daniel Balderrama (Balderrama) and a man he did not know, who were 

sitting on the front porch of the house. A car pulled up, and two people started shouting 

about how their brother had just been robbed and that they wanted to fight somebody to 

retrieve what was stolen. Balderrama and the other man ran inside the house. 

Appellant’s ride showed up and he left to go to dinner. He eventually met Larsen at a 

nearby bar, and returned home around 2:00 a.m. Appellant was wearing plaid shorts and

a white T-shirt the day of the robbery. 

Larsen saw Balderrama run into her home carrying an iPod. Balderrama was 

wearing a t-shirt, pants and a red hat with the letter “B” on it.

During cross-examination, the defense investigator conceded that Caraveo had 

identified appellant as the robber, and that Caraveo stated that Balderrama was not the 

robber when shown a picture of Balderrama.
4

DISCUSSION

Appellant contends that the trial court abused its discretion by precluding him 

from presenting expert testimony on eyewitness identification, given that his defense was 

mistaken identity. 

The Trial Court Did Not Abuse its Discretion in Precluding Expert Eyewitness 

Identification Evidence

A. Procedural History

Prior to trial, appellant moved for the appointment of Dr. Robert W. Shomer, an 

eyewitness identification expert. The trial court granted the motion. Appellant then 

moved for additional funds to compensate Dr. Shomer for his expected testimony, and 

the trial court granted the motion. The prosecution then filed a motion to exclude 

Dr. Shomer’s testimony on the grounds that it would be irrelevant and prejudicial. The 

trial court granted the motion, stating: “[J]urors are smart, [a] very high percentage of 

them are smart. [¶] I have had 1,200 trials. I know that from personal experience in

talking to them after the trial as well as during the voir dire. . . . [¶] At the end of the 

case when all the evidence is in, [the defense] can argue things that have to do with 

whether the ID is any good. [¶] And so you are covered in that respect . . . .”

B. Applicable Law

“When 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.” (People v. McDonald (1984) 37 Cal.3d 351, 377 (McDonald), 

overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896.) Our Supreme 

Court later stated, “McDonald does not apply when an eyewitness identification is 

‘substantially corroborated by evidence giving it independent reliability.’” (People v. 

Gonzales and Soliz (2011) 52 Cal.4th 254, 290–291.) The McDonald court cautioned 

that it did not intend to open the flood gates to expert testimony on psychological factors 
5

affecting eyewitness testimony, and expected that “such evidence will not often be 

needed.” (McDonald, supra, at p. 377.) The decision to admit or exclude eyewitness 

expert testimony is a matter within the trial court’s discretion and is reviewed for an 

abuse of discretion. (Ibid.)

C. Analysis

The trial court did not abuse its discretion in precluding the expert evidence on 

eyewitness identification for three reasons. 

First, contrary to appellant’s position, the victim Caraveo’s eyewitness 

identification of appellant was corroborated by other evidence. Under McDonald, this is 

reason alone to exclude expert testimony on the matter. (McDonald, supra, 37 Cal.3d at 

p. 377.) Caraveo’s brother testified that when he and Caraveo returned to the South 

Crescent Avenue house, Caraveo immediately identified appellant. Appellant was later 

arrested at the house, indicating that he indeed lived there. Though Larsen implicated 

Balderrama, she testified that she saw an iPod, confirming that Caraveo’s device was 

stolen. Also, when shown a photograph of Balderrama, who the defense claimed could 

be liable for the robbery, Caraveo did not identify him as the robber, and instead

maintained that appellant was the individual who stole his iPod at gunpoint.

Second, Caraveo’s eyewitness identification of appellant was far more reliable 

than that in McDonald, where our Supreme Court held that the trial court had improperly 

excluded Dr. Shomer’s testimony. In McDonald, where the victim was shot in a busy

intersection at rush hour, only four of the prosecution’s seven eyewitnesses identified the 

defendant in the courtroom, and their testimony revealed that they were not confident 

about their identifications. (McDonald, supra, 37 Cal.3d at pp. 356–358.) One 

eyewitness even unequivocally testified that the defendant was not the shooter. (Id. at 

p. 358.) None of the witnesses made a positive unequivocal identification during the 

pretrial photographic lineup. In addition, parked cars in front of the altercation and cars 

driving past the intersection created a limited and blocked view of the murder. (Id. at 

p. 356.) No other evidence connected the defendant to the crime. (Id. at p. 360.) The 

defense presented six witnesses who testified that at the time of the shooting the 
6

defendant was in another state visiting a relative, and this alibi was corroborated by mail 

and telephone records. (Ibid.)

Here, Caraveo identified appellant immediately after the robbery when he went 

back to South Crescent Avenue with his brother. He also identified appellant in a sixpack photographic lineup two weeks later, and his identification was unequivocal and 

made without hesitation. When shown a photograph of Balderrama, Caraveo stated that 

Balderrama was not the man who robbed him. Caraveo also identified appellant in court. 

Additionally, Caraveo’s view of appellant during the robbery was not obstructed. 

Caraveo was standing face-to-face with appellant about one foot apart. The overhead 

street light was on, allowing Caraveo to see appellant’s distinguishing facial features, 

such as acne scars. The California Supreme Court cited these same reasons—close 

proximity, lightened area, and positive identifications—in finding eyewitness 

identification evidence to be stronger than that in McDonald. (People v. Sanders (1995) 

11 Cal.4th 475, 509 [affirming exclusion of an eyewitness identification expert in a case 

in which a defendant killed four people while robbing a restaurant].) 

Finally, expert eyewitness identification testimony was not necessary in this case 

to explain the psychological factors that could have affected the reliability of Caraveo’s 

identification. Appellant cites such factors as fear, fatigue, stress, poor lighting, memory 

decay and age difference as factors necessitating expert testimony.

2 We agree with the 

People that these psychological factors are issues ordinary jurors can decipher and 

understand without the aid of an expert. Ordinary people understand that being robbed at 

gunpoint is a stressful and scary event; poor lighting can reduce the ability to see; fatigue 

can weaken one’s ability to think clearly; memory fades over time; and younger people 

tend to make less reliable identifications. Testimony from an expert would not have 

added anything to such common knowledge. (See People v. Plasencia (1985) 168 

Cal.App.3d 546, 555, where this division previously held that Dr. Shomer’s testimony 

was not relevant, stating “The jury did not need edification on the obvious fact that an 

2 At the time of the crime, Caraveo was 17 years old and appellant was 32 years old.
7

unprovoked gang attack is a stressful event or that the passage of time frequently [affects]

one’s memory.”) Further, a “particularly important” reason expert testimony was 

required in McDonald was that the identifications were cross-racial. (McDonald, supra,

37 Cal.3d at p. 376.) That was not an issue here.

Additionally, the jury was instructed with CALJIC No. 2.92, which identifies 

various factors that could affect the accuracy of a witness’s identification of the 

perpetrator, including the stress the witness was under at the time of observation, the 

witness’s capacity to make an identification, whether the witness identified the 

perpetrator in a photographic lineup, the passage of time, whether the witness was certain 

about the identification, and “[a]ny other evidence relating to the witness’[s] ability to 

make an identification.” Testimony from an expert would not have added to these 

factors. (See People v. Goodwillie (2007) 147 Cal.App.4th 695, 725 [finding no error in 

exclusion of expert evidence where CALJIC No. 2.92 was given].) Even the McDonald

court recognized that such jury instructions would focus the jury’s attention toward any

reliability issues regarding eyewitness identification. (McDonald, supra, 37 Cal.3d at 

p. 377, fn. 24.)

We conclude that the trial court did not abuse its discretion in precluding appellant 

from presenting expert eyewitness identification evidence.3

3 We therefore find no merit to appellant’s contention that his constitutional rights 

were violated.
8

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.*

FERNS

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.