Filed 11/7/13 P. v. Mendez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B245874

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA390747)
         v.

RAYMUNDO MENDEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Gail
Ruderman Feuer, Judge. Affirmed.


         Helen Simkins Irza, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Julie A.
Harris, Deputy Attorneys General, for Plaintiff and Respondent.


                                                 **********
       Defendant Raymundo Mendez was convicted of assault with personal use of a
firearm. The chief defense was mistaken identity. Three eyewitnesses identified
defendant as the assailant. One eyewitness said defendant was wearing a blue shirt with
no vest or jacket at the time of the assault. When defendant was stopped by police a few
minutes later, he was wearing a jacket. Another eyewitness said defendant was wearing a
blue shirt and a vest, and an investigating officer noted in her report defendant was
wearing a vest. The only claimed error on appeal is the court erred in allowing the
arresting officer, who was called as a defense witness, to testify on cross-examination
that it is common for people who commit gun crimes to change clothes after the crime
and discard the gun. Defendant argues this evidence was irrelevant and inherently
prejudicial “profile” evidence.
       Defendant waived this claim by failing to object at trial on the ground the evidence
was irrelevant or prejudicial. In any event, we find no merit to the claimed error. Courts
have condemned the prosecution’s use of expert testimony to describe the method and
means of a particular type of criminal to commit a particular type of crime as evidence
that, since the charged crime shares the same or similar characteristics, the defendant
must also be guilty of committing the same crime. The brief cross-examination of the
arresting officer in this case does not come close to falling within this prohibited category
of profile evidence.
                                     BACKGROUND
       The three eyewitnesses were Jose Sanchez, Jessica Mendoza and Christian
Maldonado. Sanchez drove Mendoza and Maldonado into the parking area of the Oasis
Hotel after an evening at a local club. Maldonado got out and approached the reception
office to inquire about getting a room while Sanchez and Mendoza waited in the car. The
parking lot was well lit.
       Three men in the parking lot followed Maldonado as he approached the office and
knocked on the door. There was no response, and Sanchez called to Maldonado to get
back in the car. The men followed Maldonado back to the car. After Maldonado got into
the front passenger seat, one of the men standing near the passenger side door indicated

                                             2
to Maldonado to roll down his window, which Sanchez did slightly, and the man said
something. Defendant walked around to the driver’s side, pulled out a handgun, racked
it, pointed it at Sanchez, and told him to get out of the car. Instead, Sanchez drove off
and called 911. Sanchez, Maldonado, and Mendoza each got a good look at defendant’s
face. Sanchez saw defendant’s face for about four minutes.
         Three to five minutes after driving away, Sanchez swung around and returned to
the Oasis Hotel, where there were already five or six police cars. The three got out of the
car and spotted defendant with his companions. Sanchez and Maldonado pointed them
out to the police and the three started to hurry off, but the helicopter shined its light on
them, and the police stopped and handcuffed the men. Sanchez, Mendoza and
Maldonado all identified defendant as the man with the gun. Police arrested him,
detained the others and later released them. Police searched for the gun but none was
found.
         The defense at trial was mistaken identity. Defendant offered the alibi testimony
of his friend Edgar Puac and Edgar’s brother, Pasqual Puac. Edgar testified he and
defendant had been drinking beer together and had gone to get more beer when they were
assaulted by gangsters who beat up defendant and left him bleeding on the ground of the
parking lot at the Oasis Hotel. Edgar called Pasqual for help, and Pasqual arrived 10 to
15 minutes later to pick them up. The police arrived just as Pasqual and Edgar were
about to help defendant into the car. Defendant testified in his own defense to a similar
version of events.
         The police officer at the scene, and the officer who transported defendant to the
station, testified they did not see any blood on defendant or on his clothing and he did not
tell them he had been assaulted or that he was in pain or needed a doctor.
         When Sanchez had called 911, he said defendant was wearing blue pants and a
blue shirt, but did not mention a vest or jacket. When the three eyewitnesses gave
statements to the police at the scene a few minutes later, Maldonado said defendant was
wearing a blue shirt with a black vest over it when he pointed a gun at Sanchez, but was
wearing a jacket when he was arrested by police. According to Sanchez, defendant put

                                               3
on a black jacket before the police arrived at the Oasis Hotel; he was not wearing a jacket
or vest when he pulled a gun on Sanchez. Defendant called Officer Zadi Borquez as a
defense witness. Officer Borquez and his partner were the first to arrive on the scene.
According to Officer Borquez, his police report noted that defendant was wearing a black
vest at the time of his arrest. Respondent suggests the witnesses were referring to the
same garment variously as a vest or a jacket, but we are in no position to draw that
inference because the record does not support it.1 The testimony was inconsistent as to
whether or not defendant was wearing a vest at the time of the assault and whether or not
he was wearing a vest or a jacket at the time of the arrest.
       On direct examination by the defense, Officer Borquez testified the gun was never
found. During the prosecution’s cross-examination, Officer Borquez was asked whether
it is “typical in [his] experience as a police officer that there are . . . many times calls or
incidents where a suspect was armed?” The prosecutor asked whether there are times
when “you don’t find a weapon?” Defense counsel objected on the basis of foundation,
and the objection was sustained. Accordingly, the prosecutor asked how long Officer
Borquez had been a peace officer, whether he had “responded to calls as a peace officer
where people have used weapons,” and whether he had responded to calls where the
weapon was not located. Officer Borquez answered, “Yes.” The prosecutor then asked if
it was “pretty common for you to have calls where a perpetrator uses a weapon and one is
never recovered.” Officer Borquez again answered affirmatively. Defense counsel
lodged a general objection, which was overruled. The prosecutor then asked whether
defendant was wearing a black jacket at the time of his arrest, and whether it was
“common . . . to have suspects that quickly change their description” by taking off an
article of clothing. Defense counsel did not object, and Officer Borquez answered,
“Yes.” It is the admission of this testimony which defendant claims as reversible error.




1       Sanchez was quite clear that defendant was wearing a black jacket, and not a vest,
at the time of his arrest.

                                                4
                                        DISCUSSION
         Defendant claims the admission of this brief testimony of Officer Borquez on
cross-examination by the prosecutor was “profile” evidence of little or no probative value
but great prejudicial effect. He contends this issue was not waived by trial counsel’s
failure to object on this basis, or, alternatively, that he received ineffective assistance of
counsel. We are not persuaded. The evidence was not profile evidence. Rather, the
evidence was intended to rebut defendant’s mistaken identity defense. Also, the alleged
error was waived. Defendant did not object on the ground asserted on appeal, and
because the challenged evidence was admissible, any objection would have been
meritless, and counsel’s failure to object does not constitute ineffective assistance.
(People v. Williams (1997) 16 Cal.4th 635, 661; People v. Mitchell (2008) 164
Cal.App.4th 442, 466-467; People v. Chaney (2007) 148 Cal.App.4th 772, 778.)
         “A profile is a collection of conduct and characteristics commonly displayed by
those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075,
1084.) “In profile testimony, the expert compares the behavior of the defendant to the
pattern or profile and concludes the defendant fits the profile.” (People v. Prince (2007)
40 Cal.4th 1179, 1226.) Various courts have rejected the use of profile evidence as
substantive proof of guilt. The federal courts rejected the use of drug courier profile
evidence to prove guilt, that is, expert testimony describing the characteristics often
displayed by those trafficking in drugs which is similar to the behavior of the defendant
on trial. (See, e.g., United States v. Quigley (8th Cir. 1989) 890 F.2d 1019, 1021.)
California Courts of Appeal have also found it an abuse of discretion to admit profile
testimony. (See, e.g., People v. Robbie, supra, at p. 1084; People v. Castaneda (1997) 55
Cal.App.4th 1067, 1071-1072; People v. Martinez (1992) 10 Cal.App.4th 1001, 1006-
1008.)
         For example, it was an abuse of discretion to admit an expert’s testimony
describing in detail how auto theft rings operate, such as the type of cars that are stolen,
the routes selected to transport them and the false documentation typically encountered,
to prove the defendant’s guilt because he was driving a similar vehicle on a similar route

                                               5
and shared other characteristics typical of auto thieves. (People v. Martinez, supra, 10
Cal.App.4th at pp. 1006-1008.) Similarly, it was an abuse of discretion to admit expert
testimony that most heroin dealers in Northern San Diego County are Hispanic male
adults, to prove the Hispanic male adult on trial was guilty of heroin possession. (People
v. Castaneda, supra, 55 Cal.App.4th at pp. 1071-1072.) While finding the admission of
profile evidence is not reversible per se, another court found it was an abuse of discretion
to admit expert testimony describing an archetypal “friendly” rapist who uses minimal
force, drives the victim back home to her neighborhood after the assault and asks
questions about her life, to prove the similar behavior of the defendant on trial proved his
guilt of rape because he matched the profile of the friendly rapist. (People v. Robbie,
supra, 92 Cal.App.4th at pp. 1084, 1087-1088.)
       Our Supreme Court has held profile evidence is inadmissible “only if it is either
irrelevant, lacks a foundation, or is more prejudicial than probative.” (People v. Smith
(2005) 35 Cal.4th 334, 357.) The court explained the proper analysis to determine the
admissibility of profile evidence is by weighing the Evidence Code section 352 factors,
and that “prejudice” in section 352 “does not refer simply to evidence that is damaging to
the defendant. Instead, “ ‘ “[t]he ‘prejudice’ referred to in section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues.” ’ ” (Smith, supra, at p. 357,
citation omitted.) Accordingly, “[p]rofile evidence is objectionable when it is
insufficiently probative because the conduct or matter that fits the profile is as consistent
with innocence as guilt.” (Id. at p. 358.)
       These authorities demonstrate the brief testimony of Officer Borquez was not
inadmissible profile evidence. It was relevant to rebut the inference that defendant was
misidentified because he wore different clothes and had no gun, and it was not likely to
incite the jury’s bias or passion against defendant. In the cases defendant has cited
finding reversible error in the admission of profile testimony, the prosecution called an
expert to describe at some length the stereotypical behavior of certain types of criminals
to show the behavior of the defendant on trial matched the stereotype and therefore the

                                              6
defendant was guilty. (See People v. Robbie, supra, 92 Cal.App.4th at p. 1084; People v.
Martinez, supra, 10 Cal.App.4th at pp. 1006-1008.) In contrast, here, the prosecution did
not offer the testimony of Officer Borquez as part of its case-in-chief to prove that
defendant fit the profile of a criminal by changing his clothes and discarding the gun.
Rather, Officer Borquez was a defense witness, and the brief testimony challenged here
was on the prosecutor’s cross-examination.
       Defendant had elicited testimony from Officer Borquez and other witnesses to
underscore the differences in testimony as to whether or not defendant was wearing a vest
or a jacket, and to highlight the evidence that defendant was not found in possession of a
gun. In opening statement, defendant asserted the mistaken identity defense and
developed that theme throughout trial. The prosecution’s cross-examination of Officer
Borquez was in fair rebuttal of the defense theme that the police arrested the wrong man,
by offering circumstantial evidence to suggest defendant may have disposed of the gun
and changed clothes to avoid being identified as the assailant.
       No case finding evidence had been improperly admitted as prejudicial profile
evidence is similar to this case, where a defense witness answered a few questions on
cross-examination that elicited testimony to rebut a defense, as opposed to evidence
offered by the prosecution to prove guilt by comparing defendant with the profile of a
criminal. We doubt any jury would be inclined to find defendant guilty based on
evidence that he was not wearing the same clothes the eyewitnesses described the
assailant had been wearing a few minutes earlier, and evidence that no gun was found on
or near him. We do not find the record here demonstrates the prosecution attempted to
improperly establish defendant’s guilt based on the evidence that he wore different
clothes than the assailant and bore no gun or other weapon. Since we find no abuse of
discretion in the admission of Officer Borquez’s testimony, the only issue raised on
appeal, we affirm the judgment.




                                             7
                                 DISPOSITION
     The judgment is affirmed.


                                          GRIMES, J.


We concur:


                  BIGELOW, P. J.




                  FLIER, J.




                                      8
