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 v Valentin CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 VALE NTIN,
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, J udge. Affirmed.

California Appellate Project, Jonatha n 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 secti on 211, 1 a felony. The jury also found true the allegation that appellant personally used a firearm in
violation of sect ion 12022.53, subdivision (b). In a bifurcated trial, the trial court found true that appellant had served four prior prison terms pur suant 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 priso n ter ms. Appellant contends that the trial court abused its discretion by precluding him from presenting expert testimony o n eyewitness identification. We affirm.
FACTS
Prosecution Case
O n December 26, 2011 around 7:30 p.m.
, Sergio Caraveo (Caraveo) , the vict im, was running in his neighborhood in San Pedro. Before stopp ing 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 Sou th Crescent
Av enue. Wh en 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

ar ound, so that t hey were facing each other about one foot a part

. 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 to ok 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 act ed as a lookout.
Car a veo 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 A venue 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 differe nt 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 ho use, which his friend Kim Larsen (Larsen) was renting

. B etween 6:00 and 7:00 p.m. , a ppellant wa s 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 pu lled up, and two people st arted 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 in side the ho use

. Appellant ’s ride showed up and he left to go to d inner . He eventually met Larsen at a nearby bar, and return ed 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

- shir t, 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 Bal d errama

.4 DISCUSSION Appellant contends that the trial court abused its discretion by pre cluding him from presenting expert testimony on eyewitness identification, given that his defense was mistaken identity.
The Trial Court Did Not Abuse its Discretion in Prec luding 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 addit ional funds to compensate Dr. Shomer for his expected testimony , and

t he 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 gra nted 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 t he 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 ele ment 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 accur acy 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

– 2 91.) The McDonald court cautioned that it did not intend to open the flood gates to expert testimony on psychological factors5

affecting eyewitness testimony, and expected that “such evidence will not often be needed.” ( McDonald
, supra, at p. 377.) The d ecision to admit or exclud e 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

ey ewitness 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 m atter. ( 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 in de ed 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 id entify 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 t rial court had improperly
excluded Dr. Shomer ’s testimony . In M cDonald
, 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 reveale d 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 un equivo cal 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 de fendant to the crime. ( Id . at p

. 360.) The
defense presented six witnesses who testified that at the time of the shooting the6

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 i n a six

pack photographic lineup two weeks later, and his identification was unequivocal and
made witho ut 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 wa s 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 C ourt 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 eye witness identification testimony was not necessary in this case to explain the psychological factors that could have affected the reliability of Caraveo’s
identification. App ellant cites such factors as fear, fatigue, stress, poor lighting, memory decay and age difference as factors necessitating expert testimony

. 2 W e agree with the People that the se psychological factors are issues ordinary jurors can decipher and
understand without the aid of an expert. O rdinary people understand that being robbed at gunpoint is a stressful and scary ev e nt ; poor lighting can reduce the ability to see; fatigue
can weaken one’s ability to think clearly; memory fades over time ; and younger peo ple
tend to make less reliable identification s

. 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 [a ffects ] one’s memory.” ) Further, a “particularly important” reason expert testimony w as required in McDonald was that the identifications were cross

- racial. ( McDonald , supra, 37 Cal.3d at p. 376.) That was not an issue here.
A dditionally, the jury was instructed with CALJIC No. 2.92 , which identifie s 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, th e passage of time, whether the witness was certain about the identification, and “[a]ny other evidence relating to the witness’ [s] ability to

ma ke an identification.” Testimony from an expert would not have added to these
factors . (See People v. Goodwill ie (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 af

firmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

______________________________, J. ASHMANN

- GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J. *

FERNS

* Judg e of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.