Trial court did not err by excluding the testimony of a defense eyewitness identification expert where the identification was substantially corroborated by evidence giving it independent reliability. Opinion on rehearing. A jury convicted Garcia of residential burglary. He admitted having a strike prior/prior serious felony conviction. On appeal, he argued the trial court abused its discretion and denied his due process right to present a defense by refusing to allow a defense expert to testify concerning the reliability of eyewitness identifications. Held: Affirmed. Expert testimony is admissible on subjects that are sufficiently beyond common experience when the opinion of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a)). A trial court has discretion to exclude relevant evidence if its probative value is substantially outweighed by the probability its admission will consume undue time, mislead the jury, or confuse the issues. (Evid. Code, § 352.) However, it is error to exclude eyewitness expert evidence when an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability. Here, the trial court did not abuse its discretion by excluding the expert eyewitness testimony. Ample other evidence substantially corroborated the identification of defendant, thereby reducing the probative value of the defense expert’s testimony. Defendant’s vehicle was reported at the scene of the burglary. The eyewitness also identified defendant’s good friend, who was placed at the scene of the crime by his ankle monitor, and who admitted to his involvement in the burglary. During jail calls, defendant expressed concern that his fingerprints may be found at the house and tried to set up an alibi. In addition, the jury was instructed on the many factors that may affect eyewitness identification. (CALCRIM No. 315.) Lastly, given the totality of the evidence, any error in excluding the testimony was harmless.

The case must be remanded to allow the trial court to consider whether to strike defendant’s five-year prior serious felony enhancement. On September 30, 2018, the Governor signed SB 1393, which grants trial courts the discretion to strike a prior serious felony enhancement, effective January 1, 2019. (See Pen. Code, §§ 667, subd. (a), 1385.) After SB 1393 was signed, Garcia petitioned for rehearing, arguing that the matter must be remanded for resentencing so the trial court may exercise its discretion to dismiss or strike his prior serious felony enhancement. The Court of Appeal granted rehearing and agreed with Garcia. When an amendatory statute lessens the punishment for a crime or vests in the trial court the discretion to impose a lesser penalty than under the old law, it is reasonable to infer, absent evidence to the contrary, that the Legislature intended the new law to retroactively apply to all cases not final when the statute becomes effective. It was not likely that Garcia would exhaust all his appeal rights by January 1, 2019. Therefore, the case was remanded for resentencing after the effective date of the law.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E068490.PDF