Filed 11/9/20 P. v. Smith CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS SMITH,

Defendant and Appellant.

B299441

(Los Angeles County

Super. Ct. No. BA468662)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Mildred Escobedo, Judge. Affirmed.

Susan K. Shaler, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy 

Attorneys General, for Plaintiff and Respondent.

________________________________
2

INTRODUCTION

A jury convicted Carlos Smith of first degree murder and 

found true the firearm allegations. He was sentenced to 25 years 

to life for the murder plus a consecutive term of 25 years to life 

for the firearm enhancement under Penal Code section 12022.53, 

subdivision (d). We affirm.

Smith contends the trial court erred by not conducting a 

Kelly/Frye hearing on the technique of ballistic comparisons 

because the relevant scientific community no longer accepts its 

validity.1 However, our high court has held that ballistics 

comparisons are not subject to Kelly validation because the 

technique is not new and jurors can see and evaluate the 

comparisons for themselves. (People v. Cowan (2010) 50 Cal.4th 

401, 470; People v. Venegas (1998) 18 Cal.4th 47, 81.) Whether 

that should be revisited in light of some current literature 

criticizing the validity of the technique, and several federal cases 

decided under Daubert v. Merrell Dow Pharmaceuticals, Inc. 

(1993) 509 U.S. 579 (Daubert) that have constrained how an 

expert may testify about such evidence, was not properly raised 

and the trial court correctly denied it.

We also conclude the trial court did not abuse its discretion 

in overruling certain evidentiary objections and by refusing to 

excuse a juror who quietly cried while the jury was shown 

autopsy photographs. Smith did not object to the fines, fees, and 

assessments imposed at sentencing and therefore his claim on 

that ground was forfeited.

1 The two cases are People v. Kelly (1976) 17 Cal.3d 24 and 

Frye v. United States (D.C. Cir. 1923) 293 F. 1013. It is now 

known as a Kelly hearing.
3

FACTS

We limit recitation of facts to those relevant to the issues 

raised on appeal. On May 28, 2018, near 35th and Normandie in 

Los Angeles, George McClaren was shot once in the back and 

died at the scene. Found about 90 feet away from the body was 

an expended .40 caliber shell casing.

A few days later, pursuant to a search warrant, the police 

found a .40 caliber Glock semiautomatic handgun in a closet in 

Smith’s apartment. The rounds in the magazine were the same 

brand and caliber as the expended shell casing. Based on 

ballistics comparisons, a criminalist with the Los Angeles Police 

Department concluded that the handgun found in Smith’s 

apartment was the handgun that fired the shell casing found at 

the scene of the killing.

Smith testified in his own defense. He admitted he was 

there, had a loaded firearm in his hand, and tried to fire it in the 

direction of where he heard two shots come from. But he was 

trying to fire at another man who earlier had threatened him 

with what he thought was a gun. This other man had accused 

him of stealing a bike and said he would “put a bullet in [his] 

ass.” But Smith said his gun never fired because it jammed.

DISCUSSION

I People v. Kelly and Ballistics Comparison Tests

Smith filed an in limine motion to exclude all “firearms 

comparison evidence.” The motion argued the trial court was 

required to hold a Kelly/Frye hearing as to (a) whether firearms 

comparison tests were generally accepted as reliable within the 

relevant scientific community, and (b) even if firearms 

comparison tests had been considered reliable in the past, 
4

whether the relevant scientific community still considered them 

reliable. The court denied the motion without an evidentiary 

hearing.

Ballistics comparison tests, also referred to as firearms 

comparison tests, are not subject to Kelly. (People v. Cowan,

supra, 50 Cal.4th at p. 470; People v. Venegas, supra, 18 Cal.4th 

at p. 81.) They are not new to science and the law; indeed, they 

have been admitted into evidence in courts in California for 

years. Further, they do not invoke the concerns the Kelly line of 

cases is designed to protect the jury against because the results 

are not, as Cowan emphasizes, unduly difficult for jurors to 

evaluate. The motion cited People v. McDonald (1984) 37 Cal.3d 

351, People v. Bledsoe (1984) 36 Cal.3d 236, and Sinaiko v. 

Superior Court (2004) 122 Cal.App.4th 1133 (incorrectly cited as 

People v. Sinaiko) for the proposition that ballistics comparison 

tests are subject to Kelly, but none so hold. None even references 

those tests.

The motion then argued that current scientific literature 

had called the reliability of these comparison tests into doubt. It 

cited two reports published before Cowan came down: the 2008

report from National Research Council of the National 

Academies, Ballistics Imaging, and the 2009 report from

National Research Council of the National Academies,

Strengthening the Forensic Sciences in the United States: A Path 

Forward. It also cited a later 2016 report from the President’s 

Council of Advisors on Science and Technology, Report to the 
5

President, Forensic Science in Criminal Courts: Ensuring 

Scientific Validity of Feature-Comparison Methods.

2

In a showing of, perhaps, refreshing candor, the trial court 

admitted it had not read the motion. Even so, it advised defense 

counsel that if the validity of ballistics comparison tests “is now 

called into question, then by all means, let’s litigate that. If you 

don’t have that and are just making an objection in general, I’m 

gonna deny it and go forward.” In response, defense counsel 

began discussing the testimony of the criminalist at the 

preliminary hearing, and “whether or not the people involved in 

this particular case are adequate under the Kelly Frye standard.”

Canned motions are a staple of the legal profession. But 

when the trial court asks if counsel is prepared to litigate the 

motion and the response is effectively a “no,” then the issue has 

not been adequately preserved for review. The burden to show 

the comparison tests are no longer considered reliable in the 

relevant scientific community rests on Smith. The three reports, 

standing alone, are insufficient to satisfy that burden. It would 

need to be demonstrated, for example, that the report authors are 

part of the relevant scientific community, and their opinions 

would need to be subject to testing within a courtroom 

2 At trial, the criminalist was cross-examined about many of 

the concerns expressed in these reports, including statistical 

frequency of similar toolmarks in other Glock 22 firearms and 

possible interpretation error rates. She also testified that while a 

layperson could see the same marks the criminalist can, “a 

person needs training to understand the significance of the marks 

seen.” A Kelly hearing, had it been requested, perhaps could 

have further explored whether the toolmarks on the bullet 

casings were, as Cowan suggests, not unduly difficult for the 

layperson to evaluate.
6

environment. Even were we willing to wade into the issue with 

no evidentiary record, which we are not, Smith has not provided 

any case authority, state or federal, that has held (or that even 

has suggested) that Kelly applies to ballistics comparison testing, 

or that under that standard such evidence should now be found 

inadmissible.3

The trial court did not abuse its discretion in denying the 

motion.

II Opinion Testimony on Surveillance Video

The police obtained video surveillance footage from the 

Circle K across the street and a short distance away from where 

the shooting occurred. The video showed, among other things, 

Smith walking towards and away from the Circle K, and walking 

towards the scene of the crime. It did not show the shooting 

itself. Smith argues the court improperly allowed two witnesses, 

his girlfriend Cideli Castro and Detective Everardo Amaral, to 

testify as to their interpretation as to what was on the video 

surveillance recordings. He claims it violated Evidence Code 

section 1523, improperly allowed the officer to offer his opinion as 

to Smith’s guilt, was outside of Amaral’s expertise, and abridged 

his right to a trial by jury. We find the trial court did not abuse 

3 To the extent Smith asks us to apply the standards of 

Daubert, we decline the invitation. The admissibility standards 

under the state Kelly and the federal Daubert lines of cases are 

different. California continues to follow Kelly. (People v. 

Daveggio and Michaud (2018) 4 Cal.5th 790, 831, fn. 7; People v. 

Leahy (1994) 8 Cal.4th 587, 604.)
7

its discretion and, to the extent there may have been error, it was 

harmless.4

Smith argues his claim is subject to de novo review because 

the admission of improper expert testimony from Detective 

Amaral implicated core constitutional rights. This claim of error, 

however, only involves the application of Evidence Code section 

1523 and is subject to the abuse of discretion standard. (People v. 

Goldsmith (2014) 59 Cal.4th 258, 266.) Section 1523 states, with 

limited exceptions, that oral testimony is inadmissible to prove 

the contents of a writing. A “writing” for purposes of that section 

includes video recordings. (Evid. Code, § 250.) Exceptions are 

limited to lay opinion identification (People v. Leon (2015) 

61 Cal.4th 569, 601; People v. Mixon (1982) 129 Cal.App.3d 118, 

128; People v. Perry (1976) 60 Cal.App.3d 608, 612–613) and 

matters sufficiently beyond the experience of jurors that call for 

expert opinion. (People v. Sloss (1973) 34 Cal.App.3d 74, 86–87 

[officer properly allowed to testify photograph showed marijuana 

cigarette. (Ibid.)

Smith’s claims on appeal are specific.5 As to his girlfriend, 

Castro, he argues she was improperly allowed to testify as to her 

interpretation as to how Smith walked to the Circle K and back, 

4 Smith made a pre-trial motion to exclude much the same 

evidence. The trial court declined to rule in advance, advising 

counsel that the objection would need to be raised as evidence 

was presented. Objections were made sporadically. Although the 

Attorney General argues the issue was not preserved for review, 

we disagree.

5 Castro and Amaral were asked other questions that 

implicated Evidence Code section 1523, but those statements are 

not specifically challenged.
8

and how he walked towards the scene of the crime. After 

identifying Smith in the video showing him walking towards the 

Circle K, she was asked, “Is that how Mr. Smith walks when he’s 

good and he’s happy?” She said, “Yes.” On his way back from the 

store, Castro was asked if Smith was “walking differently.” She 

said, “No.” Then, in the clip showing Smith walking towards the 

scene of the crime, she was asked: “Would you agree with me 

[the prosecution] it was different than the way he was walking 

when he was going north?” She replied, “He looks the same to 

me, like—.” The prosecution then pushed: “In the clip that we 

just watched, is that the way Mr. Smith walks when he’s a little 

bit angry?” She said, “Not really.” She explained that “[h]e’s 

always walking like that.”

It could be argued that the prosecution’s questions were a 

backdoor attempt to have the witness testify as to what the video 

showed. But we need not address that claim because error, if 

any, was harmless. The prosecution’s argument was that Smith 

walked “differently” to the scene of the crime. Castro testified 

Smith always walked that way, and Smith admitted when he 

testified in his own defense that he was happy walking to the 

Circle K and angry when he went to the scene of the crime.

Moreover, it is highly unlikely given the defense that Smith was 

intending to shoot someone else and his gun jammed that this 

testimony influenced the jury’s verdict.

As to Detective Amaral, Smith argues the officer was 

improperly allowed to testify that the video showed there was a 

large bulge in Smith’s pants pocket with a pistol handle showing, 

that Smith removed the firearm while he was walking, that he 

removed a cellular telephone from his pocket, that he and Castro 

interacted, that Castro took something from him, that he put a 
9

hand over the slide and chambered a round, and that the gun did 

not appear to malfunction. The Attorney General argues this 

testimony was admissible because it simply helped the jury know 

where in the video to look for evidence and evaluate what they 

saw.

This evidence breaks down into two discrete categories. As 

to the detective’s statement it did not appear from the video that 

the gun malfunctioned when Smith chambered a round, that 

testimony was admissible as an exception to Evidence Code 

section 1523. The detective testified as to his knowledge of guns. 

Whether the video shows the gun malfunctioned is sufficiently 

beyond the ken of jurors that an expert may testify to that fact. 

(Evid. Code, § 801, subd. (a).) As to the other testimony, any 

error was harmless. Smith testified in his own defense. He 

admitted putting the gun in his waistband, chambering a round, 

and pulling the trigger. There is no likelihood the introduction of 

the detective’s testimony affirming what Smith expressly 

admitted had any impact on the verdict.

III Refusal to Discharge Juror No. 3 Was Proper

It was brought to the court’s attention by defense counsel 

that Juror No. 3 had been seen crying during the testimony of the 

medical examiner, Lawrence Nguyen. Although the trial judge 

had not observed it, the juror was questioned by the court outside 

the presence of the other jurors. The court refused to discharge 

the juror. Smith complains the trial court failed to inquire of the 

juror thoroughly, interrupted the juror’s answers, and failed to 

question the other jurors to determine if they were affected by the 

crying juror. We find no abuse of discretion.

Defense counsel advised the court as follows: “One quick, I 

guess, issue is yesterday during Dr. Nguyen’s testimony, I was 
10

advised by my intern, who was here for the whole entire trial, 

that Jury Number 3 began crying during Dr. Nguyen’s testimony 

regarding photographs, mostly about the time in which Mr. 

McClaren would be alive. So based upon that, I do have 

concerns—I would have concerns for that emotional response, 

just as to the doctor’s very clinical testimony, and what type of, I 

guess, feelings were being brought up that caused [the juror] to 

have an emotional response to what he was saying.” The court 

agreed to question whether the juror “can still be fair and 

impartial” but would not ask “what the emotions were.” Neither 

side objected to that approach.

“[THE COURT]: Juror Number 3, the reason why we have 

you in here is because it’s been called to my attention that during 

the testimony of Dr. Nguyen, the coroner—Do you remember 

that?

“JUROR NUMBER 3: Yes.

“THE COURT: I was informed that you were showing 

some emotion or that you cried. Does that sound familiar?

“JUROR NUMBER 3: Yes.

“THE COURT: Did you do that?

“JUROR NUMBER 3: Yes.

“THE COURT: Okay. My question to you is this. Did you 

cry because the testimony was of such an amount of something 

that caused you to get emotional? Do you understand the 

question?

“JUROR NUMBER 3: Um—

“THE COURT: Or better yet, why did you cry?

“JUROR NUMBER 3: I find it difficult to—

“THE COURT: To see things like that? Is that yes?

“JUROR NUMBER 3: Yes.
11

“THE COURT: And you’re getting emotional now and 

you’re crying now.

“JUROR NUMBER 3: Yes.

“THE COURT: It’s okay. Take a deep breath. Let me ask 

you this, Juror Number 3. And you’re human. That’s normal. 

We’re just trying to understand what happened. So my question 

to you is this. Because it’s a normal human reaction, my next 

question is, even though that made you emotional, and even 

though you cried and you felt that way, are you still able to hear 

this case and be fair and impartial to both sides of the case?

“JUROR NUMBER 3: I believe so, yes.

“THE COURT: Okay. Can you wait until you hear all the 

evidence before you even start thinking about what you should be 

thinking about in this case?

“JUROR NUMBER 3: Yes. But I still feel like when I see 

images—

“THE COURT: Of course. Understood. As anybody would 

in certain instances. But the question is, understanding that you 

felt that, understanding that it made you emotional, have you 

made a decision on this case yet?

“JUROR NUMBER 3: No.

“THE COURT: Okay. And you can wait until the 

conclusion of this case when you go to deliberations to do that?

“JUROR NUMBER 3: Yes.

“THE COURT: And you’ll be fair and impartial to both the 

defense and the People in this case?

“JUROR NUMBER 3: Yes.”

Defense counsel did not object to the court’s approach but 

asserted the juror had an “unjustifiable response to the 

photographs that were depicted.” Defense counsel described the 
12

autopsy photographs as “clinical,” and again expressed concerned 

that because of the emotional response and sympathy the juror 

could not be impartial. The court disagreed. It found the juror’s 

response “appropriate” and “human” and that the juror could be 

fair and impartial. The juror was left on the panel.

The last paragraph of Penal Code section 1089 provides 

that a juror may be discharged during trial upon good cause 

shown if the court finds the juror is “unable to perform his or her 

duty.” Whether to discharge a juror is committed to the sound 

discretion of the trial court. (People v. Powell (2018) 6 Cal.5th 

136, 155.) And deference is given to the trial court’s observations 

of the juror’s demeanor. (People v. Lucas (1995) 12 Cal.4th 

415, 489; see also People v. Tate (2010) 49 Cal.4th 635, 666.) 

Here, the trial court interviewed the juror and concluded that the 

juror could remain fair and impartial despite the emotional 

response to certain photographs. That conclusion is well 

supported by the record.

Smith argues in his brief, however, that this juror’s 

“emotional outburst” called into question the juror’s ability to 

perform and impacted the ability of the remainder of the jury 

panel to serve impartially. This argument badly 

mischaracterizes the record. Neither defense counsel nor the 

court saw the juror crying in court the day before; it may 

therefore be inferred that any crying was quiet and controlled 

and not a distraction to other jurors. Further, although the juror 

cried during the court interview, no objection was made to the 

mode of the interview or its thoroughness, nor was any claim 

made that the juror was not being allowed to respond fully to the 

questions or that the court needed to interview the other panel 

members. We defer to the trial court’s decision as to how to 
13

conduct the interview and its ultimate conclusion that the juror 

simply reacted in a human way and could remain fair and 

impartial.

IV Fines, Fees, and Assessments

At the sentencing hearing, the court ordered Smith to pay 

restitution in the amount of $6,236.75. He was also ordered to 

pay a restitution fine of $300, a parole revocation fee of $300, a 

court security fee of $40, and a criminal conviction assessment of 

$30. These fines, fees, and assessments were all recommended in 

the probation officer’s report and thus Smith had notice of their 

potential imposition and he could have objected and asked for an 

ability-to-pay hearing.

This claim has been forfeited because Smith did not object 

below to the fines, fees, and assessments (he agreed to the 

amount of the restitution order) and the statute impliedly 

presumes the defendant has the ability to pay. (People v. Aguilar 

(2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 

728–729; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; 

People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)6 Even so, 

Smith argues the trial court did not make any express finding as 

to his ability to pay and thus under People v. Dueñas (2019) 

30 Cal.App.5th 1157 (Dueñas) the fines, fees, and assessments 

must be vacated. He also argues they fall under Eighth 

Amendment analysis.

6 The Attorney General suggests this appeal is also barred by 

Penal Code section 1237.2 because Smith did not first file a 

motion in the trial court to correct the imposition of these fines, 

fees, and assessments. But by its express terms, section 1237.2 

only applies when the only issue on appeal concerns the 

imposition or calculation of them. That is not this case.
14

The law in this area is unquestionably murky. Our high 

court has granted review in several cases that test the 

boundaries of the ability-to-pay argument. But given the clear 

forfeiture of this argument (the sentencing hearing here was 

conducted post-Dueñas) it seems that no matter the decision in 

those cases they will not revive the issue here.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SALTER, J.

We concur:

BIGELOW, P. J.

GRIMES., J.

 Judge of the Orange Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California 

Constitution.