Filed 11/13/15 P. v. Zapien CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ZAPIEN,

Defendant and Appellant.

 B253696

 (Los Angeles County

 Super. Ct. No. SA062827)

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

George Gonzales-Lomeli, Judge. Affirmed.

John A. Colucci, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and 

Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

INTRODUCTION

Defendant and appellant Jose Zapien was charged with two counts of special 

circumstance premeditated murder and 12 counts of attempted premeditated murder. The 

counts arose out of five separate, gang-related incidents, one in 2004 and four in 2006. 

A jury found defendant guilty of all counts and found true gun and gang allegations. On 

appeal, defendant contends that the 2004 and the 2006 counts should not have been 

joined for trial. He also contends, among other things, that photographic lineups were 

impermissibly suggestive, that the testimony of his eyewitness identification expert was 

improperly limited, and that there was insufficient evidence to convict him of two counts. 

We reject all contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

From September 28, 2004 to December 27, 2006, five separate incidents of 

shootings occurred in Santa Monica. It was the prosecution’s theory of the case that the 

shootings arose from violence between two rival gangs, Santa Monica 13 (SM13), to 

which the majority of victims belonged, and Sotel, to which defendant belonged.

A. The September 28, 2004 incident (counts 1, 2, and 3).

At approximately 4:15 p.m. on September 28, 2004, Ricardo Nunez and Guillermo 

Castell were outside an apartment on Virginia in Santa Monica. Omar Nunez, Ricardo’s 

brother, was also outside, on a street-level balcony. “[S]ome people” had followed 

Castell. A car, driven by someone in an orange wig and glasses, drove by two or three 

times. The car’s passenger was a male Hispanic, 18-to-23 years old, with short or shaved 

black hair. Ricardo heard the driver say pull out a gun. Someone from the car yelled, 

“ ‘West Side Sotel, fuck Smacka.’ ” “Smacka” is a derogatory term for SM13. Shots 

were fired.1 Broken glass cut Ricardo’s lip.

 

1

Fourteen expended cartridges were recovered from the scene. 
3

Atilio Polio was parking his car on Virginia when he saw “two guys in a car, one 

guy with a wig and makeup driving the car.” The passenger was Hispanic, 18-to-20 years 

old.

Two days after the shooting, Ricardo was shown five sets of photographic six 

packs from which he identified defendant: “ ‘I believe he was the guy that shot at me, 

same look, same hair style.’ ” Ricardo told a detective that “ ‘this one [defendant] looks 

like the passenger.’ ” Omar also identified defendant from photographic six packs: 

“ ‘This looks like the person who shot at us.’ ” Omar recognized defendant because 

defendant grinned at Omar as he drove by.

Neither Ricardo nor Omar was asked to identify defendant at the preliminary 

hearing. Neither could identify defendant at trial.

B. The February 28, 2006 shooting (counts 3, 4, and 5).

On the evening of February 28, 2006, friends Michael Arceo, Tony Velasquez, 

and Eddie Lopez were in front of a liquor store on Pico and 26th in Santa Monica when 

gun shots were fired. Looking back as he ran, Arceo saw a person wearing a brown “rag” 

that covered his face and a black hoodie that covered his head.2The shooter was tall and 

“medium size[d].”

Before the shooting, Velasquez saw a tall, skinny guy wearing “a beanie, glasses,

and a [brown] rag.” The rag was wrapped around the man’s face, from nose to bottom.3

The glasses were large, square, plastic-framed sunglasses. The man pointed a gun at 

them and said, “ ‘Sotel Trece.’ ” He fired the gun four to five times. Velasquz and Arceo 

were uninjured. Lopez was killed.4

Anne Gesling was at the nearby theatre when she heard two-to-three gunshots and 

saw two young men, one wearing a hooded sweatshirt, running down Pico.

 

2 At the preliminary hearing, Arceo said he saw “ ‘strictly the eyes.’ ”

3

It was dark outside and the person stood approximately 37 feet from Velasquez.

4

Lopez was 15 years old.
4

The night of the shooting, Arceo was unable to make an identification, and he told 

officers he couldn’t identify the person if seen again. But, a year later, on January 4, 

2007, Arceo identified defendant from a photographic six pack in position 5: “ ‘I believe 

this is the guy that shot at me and Eddie.’ ”

5 Velasquez could not identify anyone from 

six packs.

At the preliminary hearing, Arceo testified that he saw the shooter’s eyes and 

“three dots.” Arceo and Velasquez were not asked at the preliminary hearing to identify 

defendant. At trial Arceo did not recall seeing three dots. Arceo and Velasquez did not 

identify defendant at trial.

C. The July 9, 2006 shooting (counts 13 and 14).

On July 9, 2006, Krizna Ayala and Benny Arroyo were in a parked car in an alley 

near 1911 Euclid in Santa Monica. The alley was tagged with “RIP Boo Boo” and “RIP 

Limps,” members of SM13. A small car drove up from behind them. Ayala saw the 

driver and a front passenger, who had a gun. Arroyo shoved Ayala down. Multiple shots 

were fired at Ayala and Arroyo, but they were not hit. Ayala thought that the passenger 

was the shooter.

Two months later, on September 13, 2006, Ayala identified from a photographic 

six pack two people she thought might be the driver and the shooter. Ayala was shown 

another photographic six pack in January 2007. She “pretty quickly” identified 

defendant: “ ‘This looks like the guy that shot at me.’ ” She “only really saw [the 

shooter’s] eyes,” and she identified defendant because “the eyeballs still look the same.”6

She could not identify defendant at trial, although he looked like the person she identified 

as the shooter.

 

5 Defendant was in the six pack because “several people” told the investigating 

officer that “word on the street” was a Sotel gang member by the name of Youngster or 

Junior was involved.

6

From another photographic six pack she identified John Carrillo (Wino) as the 

driver. 
5

Arroyo testified but denied, among other things, being in the car that day and 

knowing of SM13. But he previously told officers that if he was forced to go to court he 

would say “[B]lack people did it.” “Well the thing is if I go to court and they make me 

go to court I’m going to help that dude out. I know he’s guilty. I know what it is. 

I already know the whole background. I’m going to say it was black people. So if he 

wants to take me I’m going to actually back the dude up because I can’t jeopardize my 

family.”

D. The October 21, 2006 shooting (counts 10, 11, and 12).

On the evening of October 21, 2006, Brittney Milan was walking near 2711 Pico 

Boulevard in Santa Monica. People, “maybe” three, were walking 10 to 15 feet ahead of 

her. A “maybe” black car was going west on Pico. The car’s window was down, the 

car’s inside light was on, and the music “was turned down.” There were “[l]ike, four” 

people in the car, two in front and two in back, and they were laughing. The front 

passenger was Hispanic, “heavy, maybe bulky,” with short black hair, and young. He 

wore a hoodie. He had three dots under his left eye.

When the car passed Milan, she saw sparks from the front passenger side, and she 

heard three or four gunshots. The front passenger was the shooter because he had 

“something out the window.” Milan was shot in the leg. Milan was 15 feet from the 

shooter and she got a good look at him.

At the scene, Officer Russell Grimmond spoke to Juan Bonilla, who said he was 

with Milan and “Kanisha” the day Milan was shot. Bonilla told an officer he was 

walking with his friend, Jose Trejo,7 when he heard shots. Bonilla was uncooperative 

with the police and would not elaborate. Bonilla used to be from SM13.8

 

7

Juan Bonilla testified but Trejo did not testify.

8

Juan Bonilla was Arroyo’s brother-in-law. Hector Bonilla (Limpy) was Bonilla’s 

cousin.
6

At the beginning of January 2007, Milan was shown photographs but she didn’t 

want to talk at the time. But, on January 25, 2007, Milan identified defendant as the 

shooter from a photographic six pack. She wrote, “ ‘He was in the car that I was shot 

from.’ ” At trial, Milan identified defendant as the shooter.9

E. The December 27, 2006 shooting (counts 7, 8, and 9).

On December 27, 2006, William Crishon was with his brother, Miguel Angel 

Martin.10 The brothers and Abel Jimenez were walking past Virginia Park at 23rd and 

Pico in Santa Monica when a car with at least two people in it pulled up. The passenger 

asked, “ ‘Are you from Smacks?’ ” or “ ‘Where are the Smacks at?’ ” At that time, 

Crishon and Martin hung out with SM13. Offended, Crishon walked toward the car and 

the passenger repeated, “ ‘Are you guys Smacks?’ ” The passenger fired a pistol at 

Crishon. Martin was shot and killed. The shooter/passenger wore a “pink fright wig”

and had a tattoo of three dots on his face. He was Hispanic, 17-to-early 20s, “chunky,” 

and clean shaven. Jimenez told an officer he got a good look at the shooter and could 

identify him.

On January 4, 2007, Crishon identified defendant as the shooter from a 

photographic nine-pack. Jimenez also identified defendant as the shooter from a 

photographic nine-pack: “This looks like the guy that shot at us on 12-27-06.”11 Crishon 

identified defendant at trial as the shooter. Jimenez, however, could not identify 

defendant as the shooter at trial.

On January 12, 2007, Jimenez was at the LAX courthouse when he saw defendant 

in the lobby.12 Scared, Jimenez called Officer Lewis and reported that he saw the 

shooter.

 

9 About two years before trial, Milan’s friend told her that people knew her name 

and that she should be quiet.

10 Crishon dated Milan, although it is unclear when.

11 He studied the photographs for a long time before making his selection.

12 The parties stipulated that defendant was at the courthouse that day.
7

F. Gang evidence.

The SM13 gang claims the entire city of Santa Monica, particularly the Pico 

neighborhood. Virginia Park is their main hangout. In 2005, Jonathan Hernandez (BooBoo) and Hector Bonilla (Limpy), both SM13 members, were murdered. The majority of 

victims in this case were SM13 gang members at the time of the shootings: Castell (Lil 

Evil); Martin (Bootsy); Velasquez (Clumsy); Arroyo (Vago); Juan Bonilla (Loony);13

Crishon (Shady);

14 and Jimenez (Yogi). Ayala was an SM13 associate, and she was 

married to Limpy. Ricardo and Omar Nunez were members of CWSK, a tagging crew. 

Arceo was a member of Kansas Street Posse, a tagging crew, some of whose members 

eventually became SM13.

Sotel is one of SM13’s rivals. Defendant has been a Sotel gang member since at 

least 2004 and was a shot caller. In 2005, Sotel 13 gang member Jose Castillo 

(“Raccoon”) was murdered by SM13. From 2005-2006, the rivalry between SM13 and 

Sotel was “active”; it “seemed like there was an incident every week.” Sotel uses the 

color brown.

Gangs have their own “code of conduct,” and they distribute their own style of 

justice. For a gang member, “[b]eing a snitch is the cardinal sin.” A gang member who 

testifies would be labeled a snitch, even by his or her own gang.

The People’s gang expert, based on hypotheticals mirroring the facts of each 

incident, opined that the crimes were committed for the benefit of and in association with 

a criminal street gang.

G. Defense eyewitness expert.

Dr. Kathy Pezdek, a professor of cognitive science and an experimental 

psychologist, specializes in eyewitness memory and identification. Memory doesn’t 

work like a video camera. Instead, memory is a three-step process: (1) the “perception 

 

13 Juan Bonilla’s wife was also a member of SM13, and his sister had a child with 

Arroyo.

14 Crishon was SM13 in 2006, but he has since turned his life around.
8

phase,” which is the ability to perceive a person clearly; (2) the “storage phase,” which is 

how long after an event the person’s memory is assessed and under what conditions; and 

(3) the “test phase,” which is the procedures used to test eyewitness memory.

Factors that affect the accuracy and reliability of eyewitness identification are:

(1) Exposure time. This refers to how long an eyewitness looks at the perpetrator’s face. 

When an eyewitness looks at a person briefly, the witness is more likely to misidentify 

the person and they’re less likely to identify the correct person. (2) Distraction. This 

refers to whatever else is going on during the time of exposure; for example, whether 

there is another perpetrator or a nearby car. (3) Weapon focus. When a weapon is 

present, people tend to focus on it rather than the face of the person holding the weapon.

(4) Cross-race identification. People are more accurate identifying people of the same 

race or ethnicity. (5) Disguise. To the extent anything covered part of the suspect’s face, 

this decreases the chance of a correct identification later. This is especially true when the 

upper part of the face is disguised by, for example, sunglasses, baseball caps, hoods or 

wigs. “Ironically, disguises to the lower part of the face, like a bandana, hamper 

identification less.” (6) Delay in time. The longer you wait between observation and the 

test of what you observed, the less reliable is memory, because memory declines over 

time. There is not a significant correlation between a witness’s confidence in their 

identification and accuracy.

“Suggestibility of memory” is how “post-event information” can change memory; 

for example, if a witness briefly observes someone at the scene of the crime and later sees 

a suspect at a lineup, then that post-event exposure can “suggestively influence their 

memory for who they thought they saw at the scene of the crime.”

H. Defendant’s alibi.

Noah Avalos is the vice president of field operations for Sentinel, which provides 

“[e]lectronic monitoring, court monitoring, probation services, G.P.S. monitoring.” 

Avalos works in the monitoring unit. The “unit calls in signals,” “at specific intervals or 

when the participant leaves, enters, or unplugs the device. [¶] And then anything that is 

deemed an exception by the probation department is generated for an operator, and that 
9

technician operator is then contacting either the residence or the probation department, 

depending on what needs to be done with that equipment.”

In 2006, defendant had a transmitter placed on his ankle, and a receiver was put in 

his home. “Any time that that person, or that ankle unit, leaves that area, then it would 

report an away status.” The unit calls in a report every four hours but checks every 

17 seconds if the ankle bracelet is within the accepted range of 150 feet of the 

transponder. Based on Avalos’s review of documents concerning monitoring covering 

July 2 through July 30, 2006, there was no indication the ankle bracelet was tampered 

with or that the ankle bracelet was outside the range of the home monitoring unit. Entries 

for July 9, 2006 did not show that the ankle unit was tampered with or that defendant 

went outside the range of the transponder.

There are, however, ways to remove an ankle bracelet, and such information is

readily available if googled. One way to remove it is “[p]utting weight in your leg, 

stretching it down your leg, lubricating it with . . . olive oil, Vaseline, and slipping it 

off[.]”

II. Procedural background.

Two informations were filed alleging attempted murder and/or murder against 

defendant, the first arising out the 2004 shootings and the second arising out of the 2006

shootings. The trial court granted the People’s motion to consolidate the cases.

A jury, on November 12, 2013, found defendant guilty as follows:

 September 28, 2004 shootings. Counts 1, 2, and 3, the attempted

premeditated murders (Pen. Code, §§ 187, 664)15 of Castell, Ricardo 

Nunez, and Omar Nunez, respectively. 

 February 28, 2006 shootings. Count 4, the premeditated murder of Eddie 

Lopez, and counts 5 and 6, the attempted premeditated murders of 

Velasquez and Arceo.

 

15 All undesignated statutory references are to the Penal Code.
10

 December 27, 2006 shootings. Count 7, the premeditated murder of

Martin, and counts 8 and 9, the attempted premeditated murders of Jimenez

and Crishon.

 October 21, 2006 shootings. Counts 10, 11, and 12, the attempted 

premeditated murders of Milan, Juan Bonilla, and Trejo.

 July 9, 2006 shootings. Counts 13 and 14, the attempted premeditated 

murders of Ayala and Arroyo.

The jury found true gang allegations as to all counts (§ 186.22, subd. (b)(1(C)). As to all 

attempted murder counts except count 10 (Milan), the jury found true personal gun use 

allegations under section 12022.53, subdivisions (b) and (c). As to the Milan16 and 

murder counts, the jury found true personal gun use allegations under section 12022.53, 

subdivisions (b), (c), and (d). As to the murder counts, the jury found true multiple 

murder and gang special circumstance allegations (§ 190.2, subd. (a)(3), (22)).

On January 9, 2014, defendant was sentenced to life without the possibility of 

parole on count 7, the murder of Martin, plus 25 years to life for the firearm 

enhancement. The trial court sentenced him, on counts 8 and 9, to a consecutive 15 years 

to life each plus 20 years to life for the firearm enhancement. On counts 1-3, 5-6, and 10-

14, he was sentenced concurrently on each to 15 years to life plus 20 years to life for the 

firearm enhancement. On count 4, the murder of Lopez, he was sentenced to a 

concurrent term of 25 years to life plus 25 years to life for the firearm enhancement. His

total term was life without the possibility of parole plus 95 years to life.

DISCUSSION

I. Joinder of the 2004 and 2006 shootings for trial did not deny defendant due 

process and a fair trial.

The 2004 and 2006 shootings were filed as separate cases. The trial court granted 

the People’s motion to consolidate them on the grounds that evidence as to motive and 

intent was cross-admissible, the crimes were of the same class, and there was no showing 

 

16 Milan was shot in the leg.
11

that adding the 2004 counts prejudiced defendant.17 Defendant now contends that the 

court abused its discretion by failing to sever the counts for trial and that the prejudicial 

effect of the joinder denied him due process. We disagree.

The law favors prefers consolidation of charges. (People v. Soper (2009) 

45 Cal.4th 759, 771-772; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220; People 

v. Manriquez (2005) 37 Cal.4th 547, 574.) Section 954 therefore provides that an 

“accusatory pleading may charge two or more different offenses connected together in 

their commission, or different statements of the same offense or two or more different 

offenses of the same class of crimes or offenses, under separate counts, and if two or 

more accusatory pleadings are filed in such cases in the same court, the court may order 

them to be consolidated.” (§ 954; see also Soper, at pp. 769, 771.) If these statutory 

requirements for joinder are met, a court nonetheless may, in its discretion, order counts 

to be tried separately. (§ 954; People v. Thomas (2012) 53 Cal.4th 771, 798.) A trial 

court’s ruling is reviewed for abuse of discretion, and, to establish such abuse, the 

defendant must make a clear showing of prejudice. (Thomas, at p. 798; Soper, at 

pp. 773-774; Williams v. Superior Court (1984) 36 Cal.3d 441, 447, superseded by 

statute on other grounds, as stated in Alcala, at p. 1229, fn. 19.)

To determine whether a trial court abused its discretion, we consider, first, the 

cross-admissibility of evidence in hypothetical separate trials.18 (People v. Soper, supra, 

45 Cal.4th at p. 774.) Cross-admissibility of evidence alone is normally sufficient to 

dispel any suggestion of prejudice. (Id. at p. 775; Alcala v. Superior Court, supra, 

43 Cal.4th at p. 1221.) If the evidence would not be cross-admissible, we consider 

“ ‘whether the benefits of [the] joinder were sufficiently substantial to outweigh the 

possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration 

of the evidence of defendant’s guilt of each set of offenses.’ [Citations.] In making that

 

17 The defense made no motion to sever any of the 2006 counts from each other.

18 Our review of a trial court’s ruling on a severance motion is based on the record as 

it existed at the time of the ruling. (People v. McKinnon (2011) 52 Cal.4th 610, 630.)
12

assessment, we consider . . . : (1) whether some of the charges are particularly likely to 

inflame the jury against the defendant; (2) whether a weak case has been joined with a 

strong case or another weak case so that the totality of the evidence may alter the 

outcome as to some or all of the charges; or (3) whether one of the charges (but not 

another) is a capital offense, or the joinder of the charges converts the matter into a 

capital case.”19 (Soper, at p. 775.)

Here, the statutory requirements of section 954 were met. The 2004 counts and 

the 2006 counts were of the same class of assaultive crimes; namely, murder and 

attempted murder. (People v. Miller (1990) 50 Cal.3d 954, 987.) Because the statutory 

requirements of joinder were met, defendant, to establish that the court nonetheless 

abused its discretion, has the high burden of showing clear prejudice.

This burden has not been met. Gang evidence would have been cross-admissible 

on the issues of motive and the identity of the shooter, the latter of which was a key 

disputed issue. SM13 and Sotel (defendant’s gang) were rivals, with that rivalry 

becoming especially intense in 2005 and 2006. Almost all victims were SM13 or part of 

a tagging crew. The one victim who arguably was not associated with SM13 was Milan, 

who nonetheless was walking near SM13 members Juan Bonilla and Trejo when she was 

shot.20 Also, the driver of the car in the September 28, 2004 counts wore an orange wig 

and glasses. The shooter in the December 27, 2006 counts wore a pink fright wig. The 

use of a distinctive wig tended to establish defendant’s involvement in both shootings. 

(Compare Williams v. Superior Court, supra, 36 Cal.3d at p. 450 [very little similarity 

existed between two gang shootings occurring nine months apart to support joinder].)

Even if we agreed there was no cross-admissibility of evidence, joinder would still 

have been appropriate. (See generally § 954.1; Alcala v. Superior Court, supra, 

43 Cal.4th at p. 1222 [absence of cross-admissibility alone is insufficient to establish 

 

19 The third factor is not at issue.

20 Milan also dated the victim of count 9, Crishon, although it is not clear when they 

dated. 
13

prejudice].) The benefits of joinder did not outweigh any possible prejudice from the 

“spill-over” effect of other crimes evidence. No one incident was more inflammatory 

than another. Rather, all charges arose from the same set of facts, basic and generic in 

the sense that they were gang-related drive-by shootings. The primary identifications all 

were made from photographic line ups. Although defendant argues that some 

identifications were weak because, for example, no witness to the September 28, 2004 

shooting identified him in court, 21 for each shooting, including the September 28 one, 

defendant was identified as the shooter from photographic lineups. Although defendant 

argues he had an “ironclad alibi” to the July 9, 2006 shooting, based on evidence he was

on home arrest, that alibi, as we discuss post, was not “ironclad.” There was evidence 

that ankle monitoring bracelets, such as the one defendant wore, can be tampered with. 

No one of the five incidents was therefore particularly stronger or weaker than the other.

We therefore conclude that joinder was appropriate under section 954 and that 

defendant has failed to make a clear showing consolidation prejudiced him.

II. The photographic lineups are not unduly suggestive.

Before trial, defendant moved to suppress Arceo’s, Ayala’s, Crishon’s, and 

Jimenez’s identifications from photographic lineups, on the ground that defendant was 

the only person in the lineup with three dots under one eye.

22 The trial court denied the 

motion, finding that the lineups were not impermissibly suggestive and, in any event, the 

identifications were reliable.

23

 

21 Although defendant decries the lack of in-court identifications, defendant’s own 

expert witness, Dr. Pezdek, cast doubt on the virtue of such in-court identifications.

22 Arceo testified at the preliminary hearing that the shooter had three dots near his 

eye. Crishon and Milan testified at trial that the shooter had three dots.

23 In denying the motion, the court noted that nothing before it suggested that the 

police, when they put the lineups together, had information the suspect had such a tattoo.
14

To determine “whether the admission of identification evidence violates a 

defendant’s right to due process of law, we consider (1) whether the identification 

procedure was unduly suggestive and unnecessary, and, if so, (2) whether the 

identification itself was nevertheless reliable under the totality of the circumstances, 

taking into account such factors as the opportunity of the witness to view the suspect at 

the time of the offense, the witness’s degree of attention at the time of the offense, the 

accuracy of his or her prior description of the suspect, the level of certainty demonstrated 

at the time of the identification, and the lapse of time between the offense and the 

identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989; see also Manson v. 

Brathwaite (1977) 432 U.S. 98, 106-114.) “The question is not whether there were 

differences between the lineup participants, but ‘whether anything caused defendant to 

“stand out” from the others in a way that would suggest the witness should select him.’ ” 

(People v. Avila (2009) 46 Cal.4th 680, 698; Cunningham, at p. 990.) An identification 

procedure is sufficiently neutral where the subjects are “ ‘similar in age, complexion, 

physical features and build . . .’ [citation].” (People v. Leung (1992) 5 Cal.App.4th 482, 

500; see generally People v. Johnson (2010) 183 Cal.App.4th 253, 271-272.) “The 

defendant bears the burden of demonstrating the existence of an unreliable identification 

procedure.” (Cunningham, at p. 989.) “[C]onvictions based on eyewitness identification 

at trial following a pretrial identification by photograph will be set aside on that ground 

only if the photographic identification procedure was so impermissibly suggestive as to 

give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. 

United States (1968) 390 U.S. 377, 384; accord, Cunningham, at p. 990.) 

We have examined all photographic lineups, including ones in which defendant 

has a three dot tattoo (People exhibits 44, 78, and 79).24 In each lineup, all men appear to 

be of the same age: young and in their 20s. All look Hispanic. All have short or very 

closely cropped-to-bald dark hair. In exhibit 44, the men have a similar build, slightly 

 

24 People’s exhibits 78 (shown to Crishon) and 79 (shown to Jimenez) are the same 

lineup.
15

husky. In exhibits 78 and 79, the photographs are more closely cropped, revealing less of 

their build. True, in each lineup, only defendant has a facial tattoo, three dots near his 

left eye. But the tattoo does not cause defendant to “stand out” in such a way as to 

suggest to the victims that they should select him. The tattoo is barely visible in 

exhibit 44. The tattoo is more visible in exhibits 78 and 79, but it is in no way prominent. 

Indeed, no witness indicated he or she selected defendant because of the tattoo. The 

identification procedure was not unduly suggestive.

III. Eyewitness identification expert witness testimony.

Defendant contends that the trial court improperly limited the testimony of his 

eyewitness identification expert, thereby denying him due process and the ability to 

present his only defense. We disagree.

“ ‘California law permits a person with “special knowledge, skill, experience, 

training, or education” in a particular field to qualify as an expert witness (Evid. Code, 

§ 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence 

Code section 801, expert opinion testimony is admissible only if the subject matter of the 

testimony is “sufficiently beyond common experience that the opinion of an expert would 

assist the trier of fact.” [Citation.]’ ” (People v. Vang (2011) 52 Cal.4th 1038, 1044.) 

A trial court, however, has broad discretion to admit or exclude expert testimony.

(People v. McDowell (2012) 54 Cal.4th 395, 426.)

Here, the trial court curtailed defense efforts to link wrongful convictions and 

eyewitness identifications.25 The court, for example, precluded the doctor from testifying 

about research regarding people who were convicted but were found to be factually 

 

25 Before trial, the People moved in limine to limit Dr. Pezdek’s testimony. The trial 

court noted that eyewitness experts “are allowed to testify to anything related to the 

evidence given hypotheticals,” although some experts “don’t know how to keep their 

parameters.” “[S]o I want Dr. Pezdek to focus on just generic factors.”
16

innocent.26 The court also precluded her from discussing double-blind procedures, which 

is when the person conducting the procedure or test does not know who is the suspect. 

The court ruled that this “is one of the things I was not going to allow, police procedure 

and tactics.” The court also struck Dr. Pezdek’s testimony that identifications are less 

likely to be accurate in cases involving multiple perpetrators.

Even if we agreed that the trial court’s rulings were in error, the errors were not 

prejudicial and defendant’s due process rights and right to present a defense were not 

infringed. (See generally Holmes v. South Carolina (2006) 547 U.S. 319, 324; Crane v. 

Kentucky (1986) 476 U.S. 683, 690; Chambers v. Mississippi (1973) 410 U.S. 284, 294; 

People v. Partida (2005) 37 Cal.4th 428, 435 [absent fundamental unfairness, state law 

error in admitting evidence is subject to the test in People v. Watson (1956) 46 Cal.2d 

818; namely, whether it is reasonably probable the verdict would have been more 

favorable to the defendant absent the error].) Although the right to present a defense can 

be abridged by evidence rules that infringe on the weighty interest of the accused and are 

arbitrary or disproportionate to the purposes they are designed to serve (Holmes, at 

p. 324), the ordinary rules of evidence generally do not impermissibly infringe on the 

accused’s right to present a defense (id. at pp. 326-327).

 

26 Defense counsel asked the doctor whether, “[a]s part of staying current in the field 

of eyewitness identification, have you familiarized yourself with recent research 

regarding individuals, somewhere in the neighborhood of 250 individuals, who have been 

convicted, and then” “were later exonerated, found to be factually innocent?” The People 

objected that “this was directly specified in our 402 motion.” The trial court ruled, “Yes, 

it has nothing to do with this witness’s expertise.”

When Dr. Pezdek, during cross-examination, was explaining the studies she 

conducts and that it is not possible to include real crime victims, she referred to databases 

concerning people who were wrongfully convicted. The court struck that testimony. 

When the doctor said that she takes “into consideration both research studies that I and 

other people have done and databases of victims of real crimes and how many incorrect 

convictions there –,” the court struck the testimony.
17

Defendant had a meaningful opportunity to present his defense that he was 

wrongfully identified. Evidence, for example, was presented that Ayala misidentified 

defendant as the July 9, 2006 shooter, because defendant was on home arrest that day. 

The defense had the opportunity to cross-examine the witnesses about their 

identifications. Dr. Pezdek also educated the jury about the factors leading to inaccurate 

identifications (e.g., the short amount of time the witnesses had to view the shooter; the 

distracting presence of a gun; the shooter’s disguise; the distracting presence of another 

perpetrator; and the delay between some incidents and identifications). To the extent 

defendant argues he should have been allowed to ask the doctor hypotheticals applying

these factors to the evidence, along the lines of hypotheticals asked of gang experts (see 

generally People v. Vang, supra, 52 Cal.4th 1038), the record does not show that defense 

counsel tried to and was precluded from posing such hypotheticals. In any event, the jury 

was more than capable of applying those factors to the case, even in the absence of 

specific hypotheticals modeled on the facts of the case. And, to the extent defendant 

wanted Dr. Pezdek to go beyond a simple statement that she stays current in her field by 

reviewing, for example, research about wrongful convictions, the trial court would have 

been within its discretion to limit such testimony under Evidence Code section 352.

Finally, we fail to see how the trial court’s exclusion of a portion of the expert’s 

curriculum vitae was reversible error. The People objected to the admission of Dr. 

Pezdek’s resume as hearsay and under Evidence Code section 352.

27 Because the 

document went “way beyond” documenting the doctor’s expertise, training, and 

experience, the court excluded five or six pages. The record does not contain the 

excluded portion, and it is not otherwise clear from the record what that excluded portion 

contained. We therefore cannot evaluate this issue. In any event, the trial court admitted

a portion of her resume. Dr. Pezdek also testified about her credentials. Defendant has 

 

27 The entire resume, including the excluded portion, appears to have been 10 pages 

double sided.
18

not established that the exclusion of the remainder of her resume either was an abuse of 

discretion or could have prejudiced defendant to such an extent as to warrant reversal.

IV. The July 9, 2006 shootings (counts 13 and 14).

Defendant raises two arguments specific to the July 9, 2006 attempted murders of 

Ayala and Arroyo: A. there was insufficient evidence to support his conviction of those 

counts because he was on house arrest that day, and B. the trial court denied defendant 

his due process rights by excluding documents about the electronic monitoring.

A. The evidence was sufficient to support defendant’s conviction. 

To determine whether the evidence was sufficient to sustain a criminal conviction, 

“we review the whole record in the light most favorable to the judgment below to 

determine whether it discloses substantial evidence—that is, evidence that is reasonable, 

credible and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003) 

30 Cal.4th 43, 66.) We presume in support of the judgment the existence of every fact 

the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 

46 Cal.4th 913, 919.) “ ‘Conflicts and even testimony [that] is subject to justifiable 

suspicion do not justify the reversal of a judgment, for it is the exclusive province of the 

trial judge or jury to determine the credibility of a witness and the truth or falsity of the 

facts upon which a determination depends. [Citation.] We resolve neither credibility 

issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] 

A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no 

hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s 

verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357; see also Jackson v. 

Virginia (1979) 443 U.S. 307, 318-319.) Unless the testimony is physically impossible 

or inherently improbable, a single witness’s testimony is sufficient to support a 

conviction. (People v. Scott (1978) 21 Cal.3d 284, 296.)
19

Ayala and Arroyo were the two victims of the July 9, 2006 shooting. Ayala 

identified defendant as the shooter. Although at trial Arroyo denied being present at the 

shooting, he admitted to police officers that he was present but did not want to identify 

defendant because he didn’t want to jeopardize his family, even though “I know he’s 

guilty.” These statements were recorded and played for the jury. Defendant argues that 

these identifications were impossible or inherently improbable because he was on home 

arrest on July 9, 2006. Avalos did testify that defendant, on July 9, 2006, was being 

electronically monitored. The monitoring report showed that defendant was within 150 

feet of his home all day, and the report did not indicate that the ankle bracelet had been 

tampered with. Still, Avalos conceded that there are ways, readily researchable on the 

internet, to remove the ankle bracelet:

“Q. So there are ways to defeat these, it’s readily available on the internet, 

correct?

“A. There are ways to try to defeat it, yes.

“Q. There are ways that you can defeat it, correct?

“A. There are – yes.”

The evidence therefore shows that it was possible for defendant to commit the July 9 

crimes. Defendant’s argument amounts to an improper request we reweigh the evidence 

and make credibility determinations. 

B. Any error in excluding the monitoring report was harmless.28

Although Avalos testified from documents concerning the electronic monitoring 

of defendant’s ankle bracelet, the People objected on foundational grounds to the 

admission of the documents. The trial court agreed that there was “sufficient authenticity 

and foundation” for the documents—“otherwise, I wouldn’t have allowed the witness to 

testify”—but the court refused to admit them into evidence. Even if the trial court erred 

by excluding the report or documents, the error was not prejudicial. Avalos testified 

 

28 The monitoring report is attached to a subpoena duces tecum. We assume that is 

what was marked as defense exhibit C but that was not admitted.
20

about the documents. He read each of the entries for July 9, 2006. The report showed no 

indication defendant was outside the 150 feet range of the home unit. For the days that 

defendant was on probation in July 2006 there was no indication of tampering. The 

substance of the report therefore was before the jury, and the admission of the report 

itself would have added little

V. Cumulative error.

Defendant contends that the cumulative effect of the purported errors deprived 

him of a fair trial. As we have “ ‘either rejected on the merits defendant’s claims of error 

or have found any assumed errors to be nonprejudicial,’ ” we reach the same conclusion 

with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 

33 Cal.4th 1158, 1235-1236; People v. Butler (2009) 46 Cal.4th 847, 885.)
21

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

EDMON, P. J.

JONES, J.

 



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

article VI, section 6 of the California Constitution.