Single person photo identification of defendant by stabbing victim was not unduly suggestive. Chavez and others became embroiled in a physical altercation with another group of men at a restaurant while watching the World Cup soccer match. Chavez stabbed a man, who lived. One of Chavez’s group, Gonzalez, shot and killed another man. A jury convicted Chavez of second degree murder and assault with a deadly weapon. One issue on appeal challenged a pretrial identification procedure. Held: Affirmed. To determine whether admission of identification evidence violates a defendant’s due process right, the reviewing court considers whether the identification procedure was unduly suggestive and unnecessary, and, if so, whether the identification itself was nevertheless reliable under the totality of the circumstances. A single person show up or photograph is not inherently unfair or suggestive, although it may be suggestive and not the preferred identification procedure. In this case, the stabbing victim was shown a number of photographs. He then gave a detailed description of his assailant, which prompted police to show him a photo of Chavez, who he immediately identified. Though the procedure was suggestive, it was not unduly so. Assuming the identification procedure was unduly suggestive, the victim’s identification of Chavez was reliable under the totality of the circumstances.
The trial court did not improperly limit the scope of testimony of the defense eyewitness identification expert. The defense offered an eyewitness identification expert to testify regarding situations in which events may be misperceived. The trial court limited the testimony to an opinion regarding the processes of perception during a traumatic event rather than comment on specific testimony. An expert may testify on subjects that are sufficiently beyond common experience that the expert’s opinion would assist the trier of fact (Evid. Code, § 801), which may include factors affecting eyewitness identification. However, the expert may not express his belief as to how the case should be decided. Here, the trial court excluded only testimony on how a traumatic event affected a specific witness’s identification. This was not an abuse of discretion.
The trial court did not err by instructing on imperfect self-defense or imperfect defense of another but omitting imperfect defense of codefendant Gonzalez. The trial court instructed on imperfect self-defense or imperfect defense of another (CALCRIM No. 571), naming Roldan (another person in defendant’s group) but not Gonzalez (the codefendant who killed a man). A defendant who, with intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter. This theory extends to one who kills in imperfect defense of others, if the defendant actually believed the immediate use of deadly force was necessary to defend another person against being killed or suffering great bodily injury. There was insufficient evidence to support application of imperfect defense of others as to Gonzalez because the deceased was at most holding a plastic cup when he approached Gonzalez and did not pose an imminent threat of death or great bodily injury.
There was insufficient evidence to support part of instruction regarding the right to self-defense where the defendant was the initial aggressor. The trial court instructed on the right to self-defense in a mutual combat situation or where the defendant is the initial aggressor (CALCRIM No. 3471). It omitted that portion of the instruction stating that if a defendant who used non-deadly force is met with an opponent’s use of sudden and deadly force, and the defendant could not withdraw from the fight, he has the right to defense himself with deadly force. Gonzalez argued this was error. However, substantial evidence did not support the giving of the omitted portion of the instruction, because when the deceased tapped Gonzalez on the shoulder, he at most held a plastic cup in his hand, not a heavy glass object as Gonzalez contended. This did not pose an imminent danger of death or great bodily injury to Gonzalez.
The trial court correctly admitted evidence of Gonzalez’s death threat against a witness. While Gonzalez was in jail prior to trial, he conveyed to his cellmate a threat to harm a prosecution witness’ family, and had the cell mate convey the threat to the witness. The witness testified regarding the threat. Evidence Code section 352 allows a trial court to exclude evidence if its probative value is outweighed by its prejudicial effect. Here, the testimony was relevant to the witness’ state of mind and credibility regarding his description of events and identification of Gonzalez as the shooter. Similar testimony from the cellmate ameliorated any undue prejudice from admission of the evidence. Further, the trial court provided the jury with a limiting instruction regarding its use of the evidence. Assuming arguendo that the testimony should not have been allowed, any error was harmless.
Senate Bill No. 620, which gave trial courts discretion to strike gun use enhancements, applies retroactively to this case, and remand for resentencing is required. At the time of the murder, the former version of Penal Code section 12022.53 required a trial court to impose a consecutive enhancement of 25 years to life where the defendant personally used a gun in the commission of a murder. Senate Bill No. 620 revised section 12022.53, subdivision (h) to allow a trial court to strike a gun use enhancement in the interest of justice. Because Gonzalez’s judgment is not final, the amendment should be retroactively applied to him (In re Estrada (1965) 63 Cal.2d 740). Remand is required because the record does not clearly indicate the trial court would have declined to strike or dismiss the gun use enhancement if it had the discretion to do so at the time of Gonzalez’s sentencing.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069533M.PDF