Filed 11/13/15 P. v. Zapien CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

JOSE ZAPI EN,
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 Ge neral, for Plaintiff and Respondent.

_________________________2 INTRODUCTION
D efendant 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 o f fiv e 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 tr ial. 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 th e 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, dr o ve 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

. S o meone from the car yelled,

“ ‘ West Side Sotel
, fu ck S macka. ’ ” “Smacka” is a derogatory term for SM13. S hots
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

. T wo days after the shooting, Ricardo was shown five sets of photographic six pack s from which he identified defendant : “ ‘ I believe he was the guy that shot at me, same look, same hair style. ’ ” Ricardo told a detective tha t “ ‘ 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 Rica rdo nor Omar w as asked to identify defendant at the preliminary hearing. N either 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 E ddie 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 cover ed his face and a black hoodie that cover ed his head. 2 The 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, squa re, 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 we aring a hooded sweatshirt, running d own Pico.

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

3 It was dark outside and the person stood approximately 3 7 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 fro m 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. A t 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, K rizna 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 Limp s , ” 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, o n 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 ph otographic six pack she identified John Ca r rillo (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 wa s 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 wa s 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, o n J anuary 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 (count s 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 S macks at?’ ” At that time, Crishon and Martin hung out with SM13. Offended, Crishon walked toward the car and the passe nger repeated, “ ‘Are you guys S macks?’ ” The passenger fired a pistol at
Crishon. M artin 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
ident ify 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
iden tified 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 re port ed 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 Mila n, 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 cou rthouse 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 (Boo

Boo) and Hector Bonilla (Limpy), both SM13 mem bers, 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. Ric ardo and Omar Nunez w ere members of CWSK, a tagging crew. Arceo was a member of Kansas Street Posse, a tagging crew, some of whose members eventually beca me SM 13. Sotel is one of SM13’s rivals. Defe ndant 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 bet ween SM13 and Sotel was “active ” ; it “seemed like there was an inci den t 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. Ka thy 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

- st ep 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 th e ability to perceive a person clearly; (2) the “storage phase,” which is how long after an event the person’s memory i s assessed and under what conditions; and (3) the “test phase,” which is the procedures used to test eyewitness memory.
Factors that aff

ect the accuracy and reliability of eyewitness identification are : (1) E xposure time

. This r efers to how long an eyewitness look s at the perpetrator’s face. When an eyewitness looks at a person briefly, the witness is more likely to misidentify the pers on 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 . W hen a weapon is

pres ent, people tend to focus on it rather than the face of the person holding the weapon. (4) Cross

- race identification. P eople are more accurate identifying people of the same

race or ethnicity

. (5) Disguise. To the extent anything covered part of the su spect’s face,

t his d e crease s 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 fac e, 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, t hen 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 monitor ing, 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 that9

technician operator is then contacting either the residence or the probation department, depending on what needs to be done with that equipment.” In 2006, d efendant had a tran smitter 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 a n 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 bracele t was outside the range of the home monitoring unit. Entries for July 9, 2006 d id not show that the ankle un it was tampered with or that defendant went outside the range of the transponder

. There are, however, ways to remove an ankle bracelet , and such i nformation 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 mo tion to consolidate the cases. A jury, on November 12, 2013, foun d 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 premeditat ed murder of Eddie Lopez, and counts 5 and 6, the attempted premeditated murders of Velasquez and Arceo

.

15 All undesignated statutory re ferences 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

. Count s 10 , 11, and 12, the attempted premeditated murders of Milan, J uan Bonilla , and Trejo

.

 July 9, 2006 shootings

. Count s 13 and 14, the attempted premeditated
murders of Ayala and Arroyo

. The jury found true gang allegati ons 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 Milan 16 and murder counts, the jury fo und 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, defend ant 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 t o 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 the m on the ground s that evidence as to motive and
intent was cross

- admissible
, the crimes were of the same class, and there was no showi ng

16 Milan was s hot 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 a n “accusatory pleading may ch arge 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 pleading s are filed in such cases in the same court, the court may order them to be consolidated.” (§ 954 ; see also Soper
, at pp. 7 6 9 , 771 .) If the se 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 h ypothetical separate trials. 18 ( People v. Soper, supra
, 45 Cal.4th at p. 774.) C ross

- admissibility of evidence alone is normally sufficient to dispel any suggestion of prejudice. ( Id. at p. 7 75 ; Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221 .) I f 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 considerati on 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 th e 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

st rong 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

c apital case.” 19 ( Soper, at p. 775.) Here, the statutory requirements of section 954 were met . T he 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, 9 87.) Because the statutory requirements of joinder were met, defendant, to establish that the court nonetheless abused its discretion, has the high burd en of showing clear prejudice.
This burden has not been met. G ang evidence would have been cross

- admi ssible
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 p art of a tagging crew . The one victim who arguably was not associated w ith 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 orang e 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 litt le similarity
existed betwee n two gang shootings occurring nine month s 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, a ll charges arose from the same set of facts
, basic and generic in the sense that they were gang

- related drive

- by shooting s

. The primary identifications all

w ere made from photographic line ups. Although defendant arg ues that some identifications were weak because, for example, no witness to the September 28, 2004 shooting identified him in court, 21 for each shooti ng, including the September 28 one, defendant was identified as the shooter from photographic lineups. Al though defend ant
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 wor e, 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 p rejudiced him.
II. The p hotographic 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. Pezde k, 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 t hat the shooter had three dots.

23 In denying the motion, the c ourt 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 vio lates 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 cer tainty 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 w hether 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 unreliab le 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 lineup s , including ones in which defendant
has a three dot tattoo (Pe ople exhibits 44, 78, and 79). 24 In each lineup, a ll men appear to be of the same age : young and in their 2 0s. 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 t o 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 ha s a facial tattoo
, three dots near his left eye . But the tattoo d oes not cause defendant to “stand out” in such a way as to suggest to the victims that they should select him. T he tatt oo is barely visible in
exhibit 44. The tat too 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 witne ss 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, experie nce, 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 tes timony 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, howeve r, has broad discretion to ad mit 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, preclude d the doctor from testifying about research regarding people w ho were convicted but were found to be factually

25 Before trial, the P eople 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 procedure s , 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 mult iple 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, 43 5 [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 th e 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 t o present a defense ( id. at pp. 32 6

- 327 ).

26 D efense 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 d o 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 testimo ny.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 lead ing to inaccurate
identifications ( e.g., the short amount of time the witnesses had to view the shooter; th e distracting presence of a gun; the shooter’s disguise; the distracting presence of another perpetrator; and the delay between some incidents and i dentifications)

. To the extent defendant argues he should have been allowed to ask the doctor hypotheticals apply ing
th e se 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, t o the extent defendant wanted Dr. Pezdek to go beyond a simple statement that she s tays 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 exclusio n of a portion of the expert’s
curriculum vitae was reversible error . T he 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 testi fied about her credentials. Defendant has

27 T he 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 suc h 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 th ose 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 wh ether 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 s olid 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 coul d 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 judg e 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.]’ [C itation.] 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 Ar royo 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
defen dant be cause 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 arg ues that
these identifications we re 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

t ampered with. Still, Avalo s 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 i t, 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. T he 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 th at was not admitted.20

about the documents. He read each of the entries for July 9, 2006. T he report showed no indication defendant was outside the 150 feet range of the h ome 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
i tself would have added little
V. Cumulative error.
Defe ndant contends that the cumulative effect of the purported errors deprived
him of a fair trial. As we have “ ‘either r ejected 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. 

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