Filed 7/28/15 P. v. Zuniga CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                           B254935

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA074799)
         v.

EDWARD MIGUEL ZUNIGA et al.,

         Defendants and Appellants.




         APPEAL from judgments of the Superior Court of Los Angeles County,
Lisa M. Chung, Judge. Affirmed in part, and remanded with directions.
         John Doyle, under appointment by the Court of Appeal, for Defendant and
Appellant Edward Miguel Zuniga.
         Murray A. Rosenberg, under appointment by the Court of Appeal, for
Defendant and Appellant Orlando Steven Burgos.
         Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr., and Stephanie A. Muyoshi, Deputy Attorneys General, for Plaintiff
and Respondent.
                      ___________________________________________
                                INTRODUCTION
      Appellants Edward Miguel Zuniga and Orlando Steven Burgos were
convicted of assaulting Martin Moya Lopez (Moya). Zuniga was separately
convicted of extortion, kidnapping for extortion, first degree robbery, and
dissuading a witness (Moya’s wife Gloria Abarques) by force or threat. Burgos
was separately convicted of making criminal threats against Moya. Appellants
contend they were denied due process when the trial court precluded them from
cross-examining Moya about his immigration status and his application for a U
Nonimmigrant Visa (U-Visa). (See 8 C.F.R. § 214.14 [describing U-Visa
program, which generally permits victims of certain crimes who cooperate with
law enforcement to remain temporarily in the United States despite their
immigration status].) Zuniga also challenges certain rulings of the trial court,
including denials of motions to suppress and a motion for a new trial. Burgos
separately challenges certain sentencing enhancements. The People concede that
certain of the sentencing enhancements imposed on Burgos were improper, and
request that Burgos’s case be remanded for resentencing. Aside from Burgos’s
sentencing issues, we find no reversible error. Accordingly, we affirm Zuniga’s
judgment and sentence. We also affirm Burgos’s convictions, and remand to the
trial court for resentencing on those convictions.
                           PROCEDURAL HISTORY
      A.     Zuniga’s Convictions and Sentence
      A jury found appellant Zuniga guilty of robbery (count one) and found true
the allegations that the robbery was of the first degree, that Zuniga voluntarily
acted in concert with two or more other persons, and that a principal personally
used a firearm during the commission of the crime. It also found Zuniga guilty of
dissuading a witness (count two), and found true the allegation that Zuniga had


                                          2
used force or a threat. The jury further found Zuniga guilty of assault with a
deadly weapon (a knife), extortion and kidnapping for extortion (counts seven,
eight, and nine) and found true the allegation that Zuniga caused the victim (Moya)
to suffer bodily harm or intentionally confined the victim in a way that created a
substantial risk of death. Finally, the jury found true the allegations that all the
charged offenses were committed for the benefit of a criminal street gang.
      In a bifurcated proceeding, the trial court found that Zuniga had one prior
conviction pursuant to Penal Code sections 1170.12, subdivisions (a) through (d),
                             1
and 667, subdivision (a)(1).
      On count one (robbery), the court sentenced Zuniga to 30 years to life, plus
five years for the section 667, subdivision (a)(1) enhancement. On count seven
(assault with a deadly weapon), the court imposed a total term of 18 years,
consisting of eight years, plus five years for the gang enhancement, and five years
for the section 667, subdivision (a)(1) enhancement. On count nine, the court
imposed a sentence of life without the possibility of parole, plus five years for the
667, subdivision (a)(1) enhancement. The court also imposed concurrent sentences
of 19 years to life on count two (dissuading a witness) and 19 years to life on count
eight (extortion).
      B.     Burgos’s Convictions and Sentence
      A jury found appellant Burgos guilty of criminal threats (count five) and
assault with a firearm against Moya (count six). It found true the firearm
enhancement allegation (§ 12022.5, subd. (a)) as to count five, and the gang
enhancement allegation (§ 186.22) as to both counts. The jury was deadlocked on



1
      All further statutory citations are to the Penal Code, unless otherwise stated.


                                           3
counts eight and nine (extortion and kidnapping for extortion). After a mistrial
was declared as to those counts, the prosecution elected not to proceed on them.
      In a bifurcated proceeding, the trial court found that Burgos had two prior
convictions pursuant to sections 1170.12, subdivisions (a) through (d), and 667,
subdivision (a)(1)), and four prior convictions pursuant to section 667.5,
subdivision (b).
      The court sentenced Burgos to state prison for a total of 25 years to life, plus
33 years for various enhancements: 10 years for the firearm enhancement,
10 years for the gang enhancement, 5 years for each of the two section 667,
subdivision (a)(1) enhancements, and one year for each of the three section 667.5,
subdivision (b) enhancements. Pursuant to section 654, the court imposed and
stayed a 25-year-to-life sentence for count six (assault with a firearm).
      Appellants noticed appeals from the judgments and sentences.
                           FACTUAL BACKGROUND
       A.    The Prosecution Case
      In 2011 and 2012, Moya and his wife Abarques lived in a house in
Panorama City. They allowed a homeless woman, Maya Hermosillo, to live with
them for a few months. Moya and Abarques met appellants through Hermosillo
and her friends. They knew Zuniga as “Spanks” or “Spanky,” and Burgos as
“Largo.” Based on how Hermosillo and her friends treated Zuniga, Abarques
thought that he was a head of the gang. Neither Abarques nor Moya had ever been
in a gang.
      Moya and Abarques needed a car, and Zuniga offered to sell them one.
Shortly thereafter, Zuniga brought a green sedan to their home. Zuniga told Moya
and Abarques that they could buy the car for $800, but they declined because the
car was not working. After being parked outside their house for a week or two, the


                                          4
car was removed. A few days later, Zuniga called and told Moya that he and
Abarques owed him $800 for the car. After refusing to pay Zuniga, Moya
Abarques noticed that items were missing from their home, including a
television, a computer, a printer, and some work tools. Abarques then asked
Hermosillo to leave.
      About a week later, on January 6, 2012, Moya and Abarques suffered
a home invasion robbery. That night, Abarques had come home from work
around 7:00 p.m. She was alone in the house; Moya was in the hospital due
to illness. At around 7:30 p.m., Abarques heard someone jumping over the
house gate. When Abarques went to investigate, she met Hermosillo, who
told her that Zuniga wanted to speak with her. Abarques initially refused to
open the door, but relented when Hermosillo lifted her shirt to show
Abarques a gun and a knife. Zuniga, Hermosillo and two other individuals
then entered and ransacked the house. Before leaving, Zuniga took the
battery out of Abarques’s cell phone, and told her not to call the police or
they would come back. Abarques did not immediately call the police
because she was scared.
      Moya was informed that his wife was looking for him, so he had an
acquaintance drive him home from the hospital that evening. When Moya
arrived at his house, he observed several people, one of whom was
Hermosillo, taking items out of the house. Moya did not see Abarques, so
he asked the driver to take him to his uncle’s house where he spent the night.
      The next morning, Hermosillo found Moya at his uncle’s house, and
                                                 2
told him that Zuniga wanted to speak with him. Moya initially refused to

2
       On cross-examination, Moya stated he was not sure when he was kidnapped,
but that it was about week after the home invasion robbery. On re-direct, Moya

                                          5
go with Hermosillo to meet Zuniga, but Hermosillo pulled him outside, where
three individuals and two cars were waiting. One of the individuals approached
Moya with a handgun in her hand, and told him to get into one of the cars.
Hermosillo told Moya that if he did not get in the car, “something” would happen
to Abarques.
      Moya was taken to a garage of an unfamiliar house. There were about 10
people in the garage. Although Hermosillo told Moya that Zuniga was waiting for
him, it was Burgos who first met him. Burgos told Moya to sit down, and then
started hitting him in the head and back. Burgos then pulled out a gun and told
Moya, “I am going to kill you.” Moya was afraid, and tried to grab the gun. As he
did so, a female bystander hit him on the head with her gun. The remaining
bystanders pulled out their guns, and told Moya not to do anything.
      Zuniga then came in and asked why Moya was in the garage. When
Hermosillo told him that it was a surprise for him, Zuniga responded, “Why do you
have him here when I never said for you to bring him?” Zuniga then told Moya
that he now owed him $1,600 for the car, and that Moya had 24 hours to pay him.
On Zuniga’s order, Hermosillo and several others returned Moya to his uncle’s
house.
      Moya told his wife about the kidnapping. Abarques testified that she saw a
bruise on Moya’s forehead, and that Moya complained about pain in his jaw and
the back of his head for days.
      A few days after the kidnapping, Moya went to his uncle’s house to borrow
money to pay Zuniga. After Moya went inside, Zuniga arrived and began beating

clarified that he was kidnapped the morning after the robbery, and that three or
four days later Zuniga assaulted him with a knife. Defense counsel also elicited
testimony that Moya had told a police detective that he was taken from a park.
Moya explained that his uncle’s house was located near a park.

                                         6
him up. Zuniga punched him twice, and then took out a knife and hit Moya
on the left side of the jaw with the flat of the knife blade. He asked Moya,
“Where is my money?” Zuniga demanded Moya’s wallet, and took $20 out
of it, saying, “I’m going to take this as part of payment of what you owe
me.” Zuniga then left.
      Moya testified he did not immediately report the various incidents to
the police because he was afraid. On January 9, 2012, Abarques reported
the entire matter to the police because she wanted the perpetrators caught.
      Los Angeles Police Detective Manuel Armijo testified he was the
original investigating detective on the case. He interviewed Abarques and
Moya on January 23, 2012. When the detective interviewed Moya about the
kidnapping, he observed that Moya had a bump on his forehead and a
swollen cheek. Detective Armijo showed Abarques and Moya a
photographic six-pack, and each identified Zuniga’s photo. Moya also
identified Burgos from a separate six-pack. Detective Armijo testified that
he could not locate Moya’s uncle to interview him.
      About a month after these events, Moya accompanied Detective
Armijo to look at some items in a car in impound. Zuniga had been arrested
in the car. A knife and some miscellaneous items had been listed during the
inventory of the car’s contents. The detective thought some of those items
might belong to Moya. Moya identified as items that had been stolen from
him: a camera, some bolt cutters, a level, and the knife Zuniga had used to
beat him up. Moya testified that the knife had been given to him as a gift,
but that he had relinquished it to Zuniga after Zuniga asked for it.
      In March 2012, Abarques and Moya had a telephone conversation
with Zuniga. Zuniga told Abarques that if she and Moya did not testify


                                          7
about the matter, “everything would be okay” and they would be left alone.
Abarques assured Zuniga she would not testify.
      Detective Armijo testified that a standard investigative technique was to
record all outgoing jailhouse calls of a suspect. During the investigation, Detective
Armijo learned that Zuniga had made phone calls to the victims from jail. Zuniga
also made two jailhouse calls to his wife, Vicky Contreras, during which he gave
directions for her to relay to other gang members. The recorded calls were played
for the jury
      A week after speaking with Zuniga over the phone, Abarques visited
Zuniga’s house and stayed over for three days. Abarques wanted Contreras and
Zuniga to think they were all still friends, and also wanted to see if any of the items
missing from her home were at Zuniga’s residence. Abarques observed a
computer, printer and certain tools she thought belonged to Moya.
      During the visit, Contreras told Abarques that if Zuniga was sentenced to life
in jail, “anywhere we [Abarques and Moya] run or hide, they will find us.” Moya
and Abarques were subsequently relocated. They were relocated again after
Abarques informed Detective Armijo that a man named “Carlos” had visited her at
her new residence.
      Approximately two months before trial, on November 22, 2013, Abarques
received three text messages on her cell phone, calling her a “rata” or “rat,” and
saying “payback time.” Abarques informed Detective Vasquez about the
                                                                              3
threatening texts, but did not tell the prosecutor until just before trial.
      Serena Carranza testified that she had known Zuniga since 2005, and had
used drugs with him. Carranza was afraid of Zuniga because he was a “shot

3
     Trial counsel moved for a mistrial due to delayed disclosure of the threats to
Abarques, which the trial court denied.

                                            8
caller” -- someone who sends others to do his “dirty work” -- for his gang,
the Pacoima Flats. In January 2012, Zuniga came to her home one morning
and bragged about beating up a “Mexican” named “Marcos” or “Martin”
who owed him money for a car. Zuniga also showed her the knife he used to
beat up the man. When shown a picture of the knife Moya had previously
identified, Carranza testified it was the same knife. Carranza stated that
after she had agreed to testify against Zuniga, she was beaten up and told not
to testify. She hid for a while, but decided to testify because it was the
“right thing to do.”
      Carranza admitted being a former member of the Langdon Street
gang, and having suffered multiple felony convictions, including convictions
for passing false checks and grand theft auto. Carranza also admitted that
she had an agreement with the prosecutor’s office to testify truthfully in the
instant matter in return for a sentence of time served on a charge of receiving
stolen property. On cross-examination, Carranza admitted giving a false
name and date of birth to law enforcement in the recent case. She also
admitted using a number of aliases over the last few years.
      Officer Timo Peltonen testified as an expert on the Pacoima Trece gang.
Officer Peltonen stated that the gang was on friendly terms with other gangs in the
Pacoima area, except the Pacoima Van Nuys Boys gang. He admitted being
unaware of any crimes committed by the Pacoima Trece gang in conjunction with
the Pacoima Flats gang. The officer testified that Burgos was a self-admitted
member of the Pacoima Trece gang, with the moniker Largo. He also opined that
Burgos was a “shot caller” in the gang. Presented with a hypothetical that mirrored
the facts of this case, Officer Peltonen opined that the crimes were committed in




                                           9
association with and for the benefit of the Pacoima street gangs because the gangs
would benefit from the fear and terror engendered by the crimes.
      Officer Andre Silva testified as an expert on the Pacoima Flats gang. He
testified that Zuniga was a self-admitted member of the gang with the monikers
“Big Spanks,” “Spanky” or “Eddie Boy.” He also testified that Zuniga was a shot
caller for the Pacoima Flats gang, that Contreras was an active Pacoima Trece gang
member, and that her brother Carlos was an active Pacoima Trece gang member.
Presented with a hypothetical that mirrored the facts of the instant case, Detective
Silva opined that the crimes benefitted the Pacoima Flats gang because the gang
gained monetary benefits and increased the fear and intimidation within the
community.
      B.     The Defense Case
      Appellants did not present a defense case.
                                   DISCUSSION
      Appellants contend their convictions should be reversed because they were
precluded from cross-examining Moya about his status as a holder of a U-Visa.
Appellant Zuniga separately contends that the trial court erred in denying his
motion to suppress Moya’s identification of items found in the car Zuniga was
driving when arrested, and his motion to suppress the victims’ identification due to
an allegedly unduly suggestive identification procedure. Zuniga further contends
that the trial court abused its discretion when (1) the court permitted the prosecutor
to clarify Moya’s testimony regarding Zuniga’s reaction to seeing him in the
garage; (2) the court denied his motion for a mistrial based on the delayed
disclosure of threats to Abarques; and (3) the court restricted his cross-examination
of Carranza and denied his motion for a new trial based on newly discovered
evidence that Carranza had lied about being subject to witness intimidation.


                                          10
Appellant Burgos separately contends that a firearm enhancement and a gang
enhancement were both imposed during sentencing when only the greater
enhancement should have been imposed. For the reasons stated below, we
conclude that Burgos’s sentence was improper and the matter should be remanded
for resentencing as to him. Aside from Burgos’s sentence, we find no reversible
error.
         A.    Moya’s Immigration Status and Application for a U-Visa
         Appellants contend they were denied due process and the right to present a
defense when the trial court precluded them from presenting evidence that Moya,
an undocumented Mexican national who had previously been deported and had
returned illegally to the United States, had been permitted to remain in the United
States temporarily pursuant to a U-Visa.
               1.     Relevant Factual Background
         At trial, prior to jury selection, Zuniga’s counsel argued that Moya’s status
as a holder of a U-Visa should be admitted on a limited basis because it was
relevant to Moya’s motivation to testify in the case. The prosecutor responded that
her office was not responsible for granting the U-Visa; rather, “[w]e just confirm
that he is a witness in the case and being cooperative.”
         In a declaration accompanying Moya’s October 18, 2012 U-Visa
application, he stated: “I am applying for a U-Visa based on the horrific
kidnapping, extortion, and felonious assault I fell victim to on or about January 7,
2012.” The declaration also provided factual details about the crimes. At a later
hearing on the issue, the prosecutor conceded that Moya’s declaration might have
impeachment value if the statements in the declaration were inconsistent with
Moya’s trial testimony, but sought to have the declaration “sanitized” to remove




                                            11
any mention that Moya was “on a U Visa or that he’s been deported for his status
in the United States.”
      After reviewing the application, the trial court ruled that defense counsel
would be allowed to cross-examine Moya about any inconsistencies between the
statements in the declaration and his trial testimony. However, defense counsel
would be precluded from inquiring about (1) Moya’s application for a U-Visa,
(2) the fact that Immigration and Customs Enforcement (ICE) had placed a hold on
him, or (3) the fact that he was paroled into the United States on October 18, 2012.
The court noted that no evidence demonstrated that the prosecution had extended
leniency, or that any agency had conditioned the granting of the U-Visa based on
the specifics of Moya’s testimony. The court also determined under Evidence
Code section 352 that the admission of evidence of Moya’s status as a holder of a
U-Visa and his prior dealings with ICE invited “undue speculation” and had the
potential for “undue prejudice” on matters that did not bear a sufficiently close
connection to Moya’s credibility.
      Defense counsel did not cross-examine Moya concerning any statements he
made in the U-Visa declaration describing the events underlying the charged
crimes.
             2.    Analysis
      “A criminal defendant has a constitutionally guaranteed right to confront and
cross-examine the witnesses against him or her. [Citations.]” (People v. Carter
(2005) 36 Cal.4th 1114, 1172.) “‘The constitutional right of confrontation includes
the right to cross-examine adverse witnesses on matters reflecting on their
credibility.’” (People v. Ardoin (2011) 196 Cal.App.4th 102, 118, quoting People
v. Szadziewicz (2008) 161 Cal.App.4th 823, 841-842.) “The right of confrontation
is not absolute, however, and may ‘in appropriate cases’ bow to other legitimate


                                         12
interests in the criminal trial process. [Citations.]” (People v. Carter, supra,
36 Cal.4th at p. 1172.) For example, “‘reliance on Evidence Code section 352 to
exclude evidence of marginal impeachment value that would entail the undue
consumption of time generally does not contravene a defendant’s constitutional
rights to confrontation and cross-examination.’” (People v. Pearson (2013)
56 Cal.4th 393, 455, quoting People v. Brown (2003) 31 Cal.4th 518, 544-545.)
      Here, pursuant to Evidence Code section 352, the trial court precluded
defense counsel from exploring whether Moya had an incentive to lie about the
charged offenses due to his U-Visa status. We conclude the trial court erred in
restricting defense counsel’s cross-examination of Moya, because his eligibility for
a U-Visa resulted from his having been a victim of the charged offenses. Thus,
Moya’s status as a holder of a U-Visa was relevant to show motive and/or bias, and
was relevant to his credibility. (See Briggs v. Hedgpeth (N.D. Cal. Jan. 22, 2013,
No. C 11-3237 PJH) 2013 U.S. Dist. LEXIS 8641, *34 [preclusion of cross-
examination on victim’s immigration status and availability of immigration
benefits violated defendant’s right to confrontation, though error found harmless];
Oregon v. Del Real-Garvez (Or.Ct.App. 2015) 346 P.3d 1289, 1290] [evidence that
victim knew her mother’s immigration status and knew mother had applied for a
U-Visa based on victim’s allegations against defendant was relevant impeachment
evidence].) Accordingly, the trial court abused its discretion in precluding defense
                                                                                   4
counsel from cross-examining Moya about his status as a holder of a U-Visa.


4
       Appellants also contend the trial court erred in precluding, under Evidence
Code section 352, any cross-examination of Moya on the fact that he had illegally
returned to the United States after being deported, arguing that the illegal reentry
was a crime of moral turpitude. Assuming illegal reentry is a crime of moral
turpitude, no evidence suggests that Moya suffered a felony conviction for illegal
reentry. (See People v. Maestas (2005) 132 Cal.App.4th 1552, 1556 [“Any felony

                                          13
      On this record, however, we find the error was harmless beyond a
reasonable doubt. (See People v. Geier (2007) 41 Cal.4th 555, 608
[“Confrontation clause violations are subject to federal harmless-error analysis
under Chapman v. California (1967) 386 U.S. 18, 24.”].) Moya provided his
account of the kidnapping, extortion, and assault, along with appellants’ respective
roles in the crimes, a full eight months before he applied for the U-Visa, rendering
any inference that his account was intended to bolster his application for temporary
residence in the United States speculative at best. Although he made some
inconsistent statements to Detective Armijo about aspects of the crimes, he
consistently described the nature of the offenses and each appellant’s criminal
conduct.
      To the extent Moya’s U-Visa declaration may have contained statements
inconsistent with his prior statements to Detective Armijo, appellants were
permitted to impeach him with the declaration, but elected not to do so. Both
counsel did, however, cross-examine Moya on his prior inconsistent statements to
Detective Armijo. On this record, we conclude beyond a reasonable doubt that a
rational jury would have found appellants guilty absent the error. (See Briggs v.
Hedgpeth, supra, 2013 U.S. Dist. LEXIS 8641, *45-*47 [preclusion of cross-
examination on immigration status and availability of immigration benefits
harmless where victim had given prior statements to investigating officers before



conviction necessarily involving moral turpitude may be used to impeach a witness
at a criminal proceeding.”].) Moreover, the admissibility of any such conviction
rests within the trial court’s discretion, and the court may exclude the evidence
under Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301, 306.)
The trial court’s determination that the probative value of Moya’s illegal reentry
was substantially outweighed by the probability its admission would create undue
prejudice was within the court’s discretion. Accordingly, we find no error.

                                         14
they mentioned possibility of seeking U-Visa as crime victim, and defense
counsel had cross-examined victim on several inconsistencies in prior
statements].)
      B.        Motions to Suppress
      Appellant Zuniga contends the trial court erred in denying his pretrial
motion to suppress Moya’s identification of the knife and other items in the
impounded car, as it was the result of a warrantless search in violation of the
Fourth Amendment. He further contends the court erred in denying his
motion to suppress the pretrial and in-court identification of him by the
victims, arguing that the pretrial photographic lineup was unduly
suggestively and tainted the subsequent in-court identification. In reviewing
a trial court’s ruling on a motion to suppress, we defer to the trial court’s
findings of fact, both express and implied, if supported by substantial
evidence. We independently apply the pertinent legal principles to those
facts to determine whether the motion should have been granted. (People v.
Carter, supra, 36 Cal.4th at p. 1140.)
                1.   Moya’s Identification of Items in Impounded Car
      As detailed above, Moya accompanied Detective Armijo to an impound yard
and identified several items found in the trunk of a car. Prior to trial, appellant
moved to suppress Moya’s identification, arguing it resulted from a warrantless
search.
      At the hearing on the suppression motion, Los Angeles Police Officer
Anthony Lopez testified he had initiated a traffic stop on February 14, 2012.
Eventually, Zuniga -- who was driving the vehicle -- pulled into a driveway of a
house and exited. He was arrested without incident, and the car was impounded.
Officer Lopez testified he impounded the vehicle because Zuniga did not live at the


                                           15
house, it was blocking the driveway, and there were no other locations in the area
to park it. Officer Lopez followed the police department’s standard procedures for
impounding a vehicle, including conducting an inventory search. During the
inventory search, Officer Lopez found a long knife, a level, and miscellaneous
tools. He filled out a report detailing the items found during the search, and listed
“a safe, clothing, multiple knives, and miscellaneous items.”
      Detective Armijo testified at the hearing on the suppression motion.
According to the detective, on February 15, 2012, he was informed that a vehicle
driven by Zuniga was in the impound yard. Accompanied by Moya, Detective
Armijo went to the impound yard to determine whether the vehicle contained items
stolen from Moya’s house as part of the home invasion robbery. Moya had
previously identified Zuniga as one of the robbers. When the trunk of the vehicle
was opened, Moya immediately identified a knife that had belonged to him that he
had given to Zuniga. Moya also identified a camera and several tools as belonging
to him.
      After receiving supplemental briefing, the trial court denied the motion to
suppress. The court determined (1) that the vehicle was lawfully impounded as it
was blocking a driveway; (2) that the inventory search was lawful because it was
conducted pursuant to standard police procedures; and (3) that Detective Armijo’s
“look at the property with the victim” was lawful, as the detective was already
aware of the items in the vehicle, and the items could be examined to determine if
they were stolen
      On this record, we independently conclude that the motion to suppress was
properly denied. First, the impounding of the vehicle was proper as part of the
police’s community caretaking function. (See, e.g., Halajian v. D & B Towing
(2012) 209 Cal.App.4th 1, 15 [“In the role of ‘community caretaker,’ peace


                                          16
officers may impound vehicles that jeopardize public safety and the efficient
movement of vehicular traffic”].) Here, appellant was not the registered owner of
the vehicle, the vehicle was blocking another individual’s driveway, and there was
no other licensed driver in the vehicle to drive it away. Thus, it was reasonable for
Officer Lopez to impound the vehicle to allow the homeowner access to the street.
(See People v. Steeley (1989) 210 Cal.App.3d 887, 892 [officer properly
impounded vehicle where no other licensed driver was in the vehicle, vehicle was
blocking a driveway, and appellant was not the registered owner of the vehicle]; cf.
Miranda v. City of Cornelius (9th Cir. 2005) 429 F.3d 858, 866 [unreasonable
under circumstances to impound vehicle parked in licensed owner’s home
driveway].)
      Appellant’s reliance on People v. Torres (2010) 188 Cal.App.4th 775 is
misplaced. There, the vehicle was parked in a stall in a public parking lot. (Id. at
p. 780.) In contrast, here the vehicle was parked in the home driveway of a person
who was not the vehicle’s owner, blocking the homeowner’s access to the street.
Thus, the car was properly impounded to facilitate the efficient movement of
vehicular traffic.
      Because the impound was proper, the subsequent inventory search,
conducted pursuant to standard police department procedures, also was proper.
(See South Dakota v. Opperman (1976) 428 U.S. 364, 373 [warrantless inventory
search of glove compartment of lawfully impounded automobile, conducted
pursuant to standard police procedures, does not violate Fourth Amendment’s
proscription against unreasonable searches and seizures]; accord, People v.
Williams (2006) 145 Cal.App.4th 756, 761 [“If officers are warranted in
impounding a vehicle, a warrantless inventory search of the vehicle pursuant to a
standardized procedure is constitutionally reasonable”].)


                                         17
      Finally, Detective Armijo’s examination of the items in the trunk of the
impounded was lawful. As California courts have noted, “‘[o]nce articles have
lawfully fallen into the hands of the police they may examine them to see if they
have been stolen, test them to see if they have been used in the commission of a
crime, return them to the prisoner on his release, or preserve them for use as
evidence at the time of trial.’” (People v. Superior Court (Gunn) (1980)
112 Cal.App.3d 970, 974 (Gunn), quoting People v. Rogers (1966) 241 Cal.App.2d
384, 389-390.) Appellant already had been identified as a suspect in a home
invasion robbery. Thus, it was reasonable for Detective Armijo to bring the
robbery victim to identify whether the items found in the vehicle and itemized
during the inventory search belonged to the victim.
      Appellant attempts to distinguish Gunn, on the ground that it involved a
prior booking search, whereas a prior inventory search was involved here. We
discern no constitutional difference between a booking search and an inventory
search. The United States Supreme Court has noted that it first recognized the
warrantless inventory search of an automobile as an exception to the Fourth
Amendment’s warrant requirement in South Dakota v. Opperman, supra, 428 U.S.
364, and subsequently extended the same rationale supporting a warrantless
inventory search (protecting suspect’s property and deterring false claims of theft
against police) to a warrantless booking search. (See Illinois v. Lafayette (1983)
462 U.S. 640, 647-648.)
      Likewise, appellant’s reliance on People v. Evans (2011) 200 Cal.App.4th
735 is misplaced. There, the parties agreed that the initial search and a subsequent
search at an impound yard were not justified as an inventory search. (Id. at
p. 743.) The People make no similar concession here. Indeed, we have
determined that the initial search by Officer Lopez was a lawful inventory search.


                                         18
In short, the trial court did not err in denying appellant’s motion to suppress
Moya’s identification of the items in the impounded car.
              2.     The Victims’ Identification of Zuniga from Photographic Six-
packs
        On January 23, 2012, Detective Armijo showed six photographs of Hispanic
males to Abarques and Moya separately; each identified Zuniga’s photograph. His
photograph was the only one in which the depicted individual had tattoos; the
tattoo letterings were just below the neck. Prior to trial, Zuniga moved to suppress
the victims’ identification on the ground that the photographic lineup was unduly
suggestive. The trial court denied the motion. The court found that the basic facial
features, clothing, hair, and facial hair were similar; that the depicted individuals
were male Hispanics; and that although appellant was the only individual with
tattoo lettering on the lower neck, the victims had had prior contacts with
appellant, and tattoos were not the “primary issue in terms of how [they]
described” appellant to law enforcement.
        Appellant Zuniga contends (1) that the trial court erred in denying his
motion to suppress the pretrial photographic identification of the victims,
and (2) that the victims’ in-court identifications were tainted by the prior
unduly suggestive identification. We disagree.
        “In order 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 . . . .” (People v. Cunningham (2001) 25 Cal.4th 926, 989.) “The
defendant bears the burden of demonstrating the existence of an unreliable
identification procedure.” (Ibid.)


                                          19
      We have examined the photographic lineup, and observe that all six male
Hispanics depicted in the six-pack look similar. Although appellant was the only
individual with tattoo lettering, the tattoos did not cause appellant to “stand out” in
such a way as to suggest to the victims that they should select that picture. Thus,
the identification procedure was not unduly suggestive.
      Moreover, “convictions 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, People v. Cunningham, supra,
25 Cal.4th at p. 990.) The record belies any likelihood of misidentification. Both
victims had encountered Zuniga multiple times before the charged offenses
occurred, and Moya testified Zuniga had personally asked him for a knife. During
the commission of the crimes, Zuniga made no effort to hide his identity. Indeed,
during the home invasion robbery, Zuniga told Abarques not to call the police, and
during the kidnapping, Zuniga told Moya he was owed $1,600 for the car. During
the assault on Moya a few days after the kidnapping, Zuniga personally took
money from Moya’s wallet. Finally, Zuniga’s defense was not that he had been
misidentified by the victims, but rather that the victims’ testimony was inconsistent
and not credible. In short, appellant has failed to demonstrate any reversible error
arising from the pretrial photographic lineup.
      C.     Examination of Moya Regarding the Kidnapping
      Appellant Zuniga next contends the trial court erred in permitting the
prosecutor, over defense objection, to ask Moya to clarify his testimony about
Zuniga’s reaction to seeing Moya in the garage during the kidnapping incident.
We discern no error.


                                          20
             1.     Relevant Factual Background
      During direct examination, Moya -- who was using the services of a
Spanish interpreter -- testified that after he was taken to the garage, Burgos
assaulted him. Thereafter, appellant Zuniga entered and expressed surprise,
asking Hermosillo, “why did they have me there.” The prosecutor then
asked, “when he asked Maya [Hermosillo] why did you bring him here? Is
that what he said? Why did you bring him here?” Moya responded: “Yes.
No. No. He said, why do you have him here when I never said for you to
bring him?” Prosecutor: “Bring him here? Is that what he said?” Moya:
“No, no, no. To the garage.” Prosecutor: “So he said, I never told you to
bring him to the garage?” Appellant’s counsel objected on the ground that
the prosecutor was misstating the evidence. The prosecutor stated she was
trying to clarify Moya’s testimony, and the trial court overruled the
objection. Moya then answered, “Yes.”
      During closing arguments, the prosecutor argued that Moya’s
testimony demonstrated that Zuniga was surprised Moya had been taken to
the garage, not that Zuniga was surprised the kidnapping had occurred.
Defense counsel countered that Moya’s testimony showed Zuniga was upset
that Moya had been kidnapped.
             2.     Analysis
      On appeal, Zuniga suggests that the prosecutor’s conduct was
misconduct and implicates the prosecution’s obligations under Brady v.
Maryland (1963) 373 U.S. 83 (Brady). We discern no Brady violation, as
the prosecutor’s conduct did not involve any suppression of favorable and
material evidence. To the extent appellant raises a prosecutorial misconduct
claim, he has failed to preserve that claim by making a timely and specific


                                          21
objection below. (See People v. Adams (2014) 60 Cal.4th 541, 568-569 [claim of
misconduct forfeited where defendant never objected to prosecutor’s comments
during opening arguments and failed to seek an admonition].) Finally, as trial
counsel objected only on the basis that the prosecutor misstated the evidence,
appellant cannot challenge the trial court’s evidentiary ruling on any other ground.
(See People v. McKinnon (2011) 52 Cal.4th 610, 674 [failure to object on specific
ground at trial forfeits appellate challenge on same ground].)
      On the merits of Zuniga’s claim, he has not shown the trial court erred in
overruling his objection to the prosecutor’s question as misstating Moya’s
testimony. Moya’s initial testimony about Zuniga’s reaction to seeing him in the
garage was ambiguous. Based on that initial testimony, it could be inferred that
appellant was surprised Moya had been kidnapped. Likewise, the same testimony
supported an inference that appellant was surprised Moya had been taken to the
garage, rather than another location. The prosecutor’s question sought to clarify
that testimony. As Moya’s own affirmative answer confirmed, the prosecutor’s
question did not misstate the testimony.
      D.     Delayed Disclosure of Threats Against Abarques Prior to Trial.
      As detailed above, Abarques received three threatening messages in
November 2013, calling her a rat or a snitch and threatening payback for her trial
testimony. Although Abarques promptly disclosed the threats to the police, the
prosecutor was not informed of them until the morning of trial, and defense
counsel was not informed until mid-trial. The threats were not made by Zuniga or
his wife Contreras.
      Defense counsel moved for a mistrial, which the trial court denied on the
ground that the delayed disclosure did not “rise[] to the level of a mistrial.” The
court granted defense counsel time to prepare to cross-examine Abarques on the


                                           22
threats, stating “[w]e can take a break for you to explore it.” Although
defense counsel raised the possibility of an instruction on the delayed
disclosure, the court indicated it was not inclined to give the instruction.
The court permitted defense counsel to “go into the timing of when it was
disclosed.”
      Zuniga contends the trial court erred in denying his motion for a
mistrial and in precluding any possibility of an instruction on the delayed
disclosure under CALCRIM No. 306. We discern no reversible error.
              1.     Mistrial Motion
      “A mistrial should be granted if the court is apprised of prejudice that
it judges incurable by admonition or instruction. [Citation.] Whether a
particular incident is incurably prejudicial is by its nature a speculative
matter, and the trial court is vested with considerable discretion in ruling on
mistrial motions. [Citation.]” (People v. Haskett (1982) 30 Cal.3d 841,
854.) A motion for a mistrial should be granted when “‘“a [defendant’s]
chances of receiving a fair trial have been irreparably damaged.”’” (People
v. Ayala (2000) 23 Cal.4th 225, 282, quoting People v. Welch (1999) 20
Cal.4th 701, 749.)
      Here, appellant has not demonstrated that his chance of receiving a
fair trial was irreparably damaged. The jury already had heard ample
evidence that Abarques had been threatened by Zuniga and Contreras about
testifying against appellant. Abarques had testified that during the home
invasion robbery, Zuniga told her not to call the police or he and his fellow
gang members would come back. She also had testified that Zuniga told her
if she did not testify, everything would be okay. Abarques had further
testified that Contreras, appellant’s wife, told her that if appellant was


                                           23
sentenced to life in state prison, “anywhere we run or hide, they will find us.”
Moreover, the trial court permitted defense counsel to cross-examine Abarques
about the additional threats in November 2013, and granted defense counsel time
to prepare for the cross-examination. In short, we discern no abuse of discretion in
the trial court’s denial of the mistrial motion.
              2.    Jury Instruction on Delayed Disclosure
        “Section 1054.1 (the reciprocal-discovery statute) ‘independently requires
the prosecution to disclose to the defense . . . certain categories of evidence “in the
possession of the prosecuting attorney or [known by] the prosecuting
attorney . . . to be in the possession of the investigating agencies.”’ [Citation.]
Evidence subject to disclosure includes . . . any ‘[r]elevant written or recorded
statements of witnesses or reports of the statements of witnesses whom the
prosecutor intends to call at the trial, including any reports or statements of
experts.’ . . . ‘Absent good cause, such evidence must be disclosed at least 30 days
before trial, or immediately if discovered or obtained within 30 days of trial.
(§ 1054.7.)’ [Citation.]” (People v. Verdugo (2010) 50 Cal.4th 263, 279-280.)
“Upon a showing both that the defense complied with the informal discovery
procedures provided by the statute, and that the prosecutor has not complied with
section 1054.1, a trial court ‘may make any order necessary to enforce the
provisions’ of the statute . . . . (§ 1054.5, subd. (b).) The court may also ‘advise
the jury of any failure or refusal to disclose and of any untimely disclosure.’
(Ibid.) A violation of section 1054.1 is subject to the harmless-error standard set
forth in People v. Watson (1956) 46 Cal.2d 818, 836. [Citation.]” (Id. at pp. 279-
280.)
        Here, appellant was not prejudiced because the trial court granted defense
counsel time to prepare to cross-examine Abarques about the additional threats.


                                           24
(See People v. Verdugo, supra, 50 Cal.4th at p. 281 [no prejudice from violation of
section 1054.1 where defense counsel had time to prepare for cross-examination on
previously undisclosed evidence].) As a result, no instruction regarding delayed
disclosure of the threats was required. Moreover, the jury already had heard ample
evidence that Abarques had been threatened about the consequences of her
testifying. Thus, any error in failing to instruct the jury regarding delayed
disclosure would have been harmless under any standard of reversible error.
(Chapman v. California, supra, 386 U.S. at p. 22; People v. Watson, supra,
46 Cal.2d at p. 836.)
        E.    Serena Carranza’s Testimony
        At trial, Carranza testified that Zuniga had bragged about assaulting
with a knife a “Mexican” named “Martin,” who owed him money for a car.
Carranza stated that after she had agreed to testify against Zuniga, she had
been beaten up and told not to testify. She admitted that she was a former
gang member, that she had suffered multiple felony convictions, that she had
an agreement to testify in return for a more lenient sentence in another
matter, that she had given a false name and date of birth to law enforcement
in that matter, and that she had used a number of aliases over the last few
years
        Appellant Zuniga contends (1) that the trial court erred when it
precluded him from cross-examining Carranza more fully about her false
aliases, and (2) that the court erred in denying a motion for a new trial based
on newly discovered evidence that Carranza had lied about being threatened.
              1.     Cross-examination
        During cross-examination, appellant’s counsel elicited testimony that
Carranza had given a false name (Natalia Guevarra) and birthdate to law


                                          25
enforcement in her pending criminal matter. When counsel asked Carranza if she
had used the alias “Cindy Colley,” the prosecutor requested a sidebar. During the
sidebar, the prosecutor argued that the specific aliases were irrelevant and sought
to exclude further inquiry under Evidence Code section 352. The court noted that it
had allowed defense counsel to elicit a number of aliases, and asked counsel how
many more aliases he wanted to elicit. Counsel replied that he had eight additional
aliases. The court excluded an “itemized list” of aliases under Evidence Code
section 352, but permitted counsel to ask Carranza if she had used a number of
aliases over the past few years.
      When defense counsel asked Carranza if she had used eight aliases over the
past few years, Carranza denied doing so. Counsel then asked to refresh
Carranza’s recollection, but the trial court refused. Counsel asked Carranza if she
had used the alias “Serena Cole” when interviewed regarding the threats she had
allegedly received. Carranza admitted using the alias, initially stating that it was
her maiden name, but later admitting it was her sister’s name. Defense counsel
then asked, “So it’s fair to say that over the last few years you have used fictitious
names, false names?” Carranza responded, “Yes.” She also admitted lying to
police.
      Appellant contends the court erred in restricting his cross-examination of
Carranza. We disagree. “‘The constitutional right of confrontation includes the
right to cross-examine adverse witnesses on matters reflecting on their
credibility.’” (People v. Ardoin, supra, 196 Cal.App.4th at p. 118.) However, the
proper application of “‘Evidence Code section 352 to exclude evidence of marginal
impeachment value that would entail the undue consumption of time generally
does not contravene a defendant’s constitutional rights to confrontation and cross-
examination.’” (People v. Pearson, supra, 56 Cal.4th at p. 455.) Here, the trial


                                          26
court excluded further inquiry into the specific aliases used by Carranza under
Evidence Code section 352. Carranza admitted using a number of aliases over a
period of years. The trial court’s determination that further inquiry into the
specific aliases would have entailed undue consumption of time while providing
evidence of only marginal impeachment value was well within its discretion.
Accordingly, the trial court did not err in limiting appellant’s cross-examination.
      Moreover, had we found error, we would deem it harmless under any
standard of reversible error. (Chapman v. California, supra, 386 U.S. at p. 22;
People v. Watson, supra, 46 Cal.2d at p. 836.) Carranza’s credibility had been
significantly impeached. She had admitted being a former gang member, suffering
multiple felony convictions involving moral turpitude, testifying in exchange for
lenient treatment in a pending criminal matter, using multiple aliases, and lying to
the police. On this record, had defense counsel been able to cross-examine
Carranza about all her aliases, we conclude beyond a reasonable doubt that a
rational jury would still have found appellant guilty.
             2.     Motion for a New Trial
      After the jury rendered its verdict, defense counsel moved for a new trial,
based on a police report concluding that Carranza’s claim of witness intimidation
could not be substantiated. Counsel noted that the report’s “bottom line” was that
“the police said she’s a damn liar and we don’t believe her.” The prosecutor
argued that “there were two threats [against Carranza examined] in this report, and
one of them is fairly substantiated in the fact that we found a phone in the . . . jail
cell of the person that called her from jail. So this report does not mean that she’s
lying. It just means that we don’t have enough evidence to file these charges [of
witness intimidation] beyond a reasonable doubt. . . .” The prosecutor also noted




                                           27
that even if Carranza had been mistaken about certain facts, she had always been
adamant that the threats occurred.
      The trial judge denied the motion for a new trial, determining it was not
reasonably probable that there would have been a different trial result, as the
victims’ testimony substantiated the charges, and the impeachment value of the
police report was collateral.
      Appellant Zuniga contends the trial court abused its discretion in denying the
motion for a new trial, because Carranza’s testimony that she was subject to threats
bolstered her credibility with the jury. We disagree.
      “In ruling on a motion for new trial based on newly discovered evidence, the
trial court considers the following factors: ‘“1. That the evidence, and not merely
its materiality, be newly discovered; 2. That the evidence be not cumulative
merely; 3. That it be such as to render a different result probable on a retrial of the
cause; 4. That the party could not with reasonable diligence have discovered and
produced it at the trial; and 5. That these facts be shown by the best evidence of
which the case admits.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312,
328.) “‘“The determination of a motion for a new trial rests so completely within
the court’s discretion that its action will not be disturbed unless a manifest and
unmistakable abuse of discretion clearly appears.”’” (Ibid., quoting People v.
Williams (1988) 45 Cal.3d 1268, 1318.)
      Here, Carranza’s claims of witness intimidation could not be shown beyond
a reasonable doubt. However, the police report did not prove that Carranza was
lying. Moreover, as detailed above, Carranza’s credibility had been significantly
impeached. Additionally, her testimony merely corroborated the victims’
testimony. The victims had testified about the charged offenses, and also testified
that they had experienced witness intimidation. On this record, we discern no error


                                           28
in the trial court’s determination that it was not reasonably probable that a different
result would occur on a retrial. Accordingly, appellant has not shown the trial
court abused its discretion in denying the motion for a new trial.


      F.       Sentencing Errors Regarding Appellant Burgos
      As detailed above, on count five (criminal threats), the trial court imposed a
10-year firearm enhancement pursuant to section 12022.5, subdivision (a) and a
10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C).
Appellant Burgos contends that under section 1170.1, subdivision (f), only the
greater of the two enhancements may be imposed. The People concede the
sentencing error, and request that this court remand for resentencing. (See People
v. Rodriguez (2009) 47 Cal.4th 501, 508-509 [where trial court imposed 10-year
enhancements under sections 12022.5 and 186.22, subdivision (b)(1)(C) based on
use of single firearm, reversing sentence and remand for resentencing].) We agree
and, accordingly, reverse and remand to the trial court to restructure its sentencing
choices in light of this opinion.
      In a related contention, appellant Burgos also contends the trial court erred
in imposing a 10-year enhancement on the gang allegations due to a clerical error
or confusion about the proper sentencing statute. As we are remanding the matter
for resentencing, the trial court may reconsider the 10-year gang enhancement as
appropriate.




                                          29
                                  DISPOSITION
      With respect to appellant Zuniga, the judgment is affirmed. With respect to
appellant Burgos, the convictions are affirmed and the matter is remanded to the
trial court for resentencing in compliance with section 1170.1, subdivision (f).


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                    MANELLA, J.


We concur:




EPSTEIN, P. J.




COLLINS, J.




                                         30
