Filed 8/7/15 P. v. Maravilla CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140467
v.
OSCAR MARAVILLA,                                                     (Alameda County
                                                                     Super. Ct. No. C169865)
         Defendant and Appellant.


         Eighteen-year-old Jose Castrejon was shot twice and rendered a quadriplegic, an
event that was captured on the video surveillance system of the store in which the
shooting was committed. Appellant Oscar Maravilla was arrested for the crime a month
later after driving and crashing a stolen car while evading the police. He was tried before
a jury and convicted of attempted murder with firearm and great bodily injury allegations,
evading an officer with willful disregard for safety, and taking and/or driving a vehicle.
(Pen. Code, §§ 187, 664, 12022.5, subd. (a), 12022.53, subds. (b), (c), (d) & (g), 12022.7,
subds. (a) & (b); Veh. Code, §§ 2800.2, subd. (a), 10851, subd. (a).) The court sentenced
appellant to an aggregate term of nine years eight months in prison, plus 25 years to life.1




         1
          The sentence was calculated as follows: the nine-year upper term for the
attempted murder count, plus eight months (one-third the middle term) for evading an
officer, plus 25 years to life for intentionally discharging a firearm causing great bodily
injury. (Pen. Code, §§ 664, subd. (a), 12022.53, subd. (d); Veh. Code, § 2800.2, subd.
(a).) The sentences on the remaining counts and allegations were stayed.


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       Appellant argues the judgment must be reversed because the trial court admitted
evidence of an informant’s statement linking appellant to the crime. He contends this
evidence, which was admitted for the limited purpose of rebutting the defense claim that
the police had rushed to judgment in identifying appellant as the shooter, was unduly
prejudicial and not sufficiently probative. Appellant also contends his trial attorney was
ineffective in failing to object to testimony by the investigating officer that in his opinion,
appellant was the shooter in the surveillance video. He claims the cumulative effect of
these alleged errors requires reversal, even if they were harmless when considered
individually. We affirm.

                                      BACKGROUND
       Castrejon, whose nickname is “Tito,” grew up in East Oakland, where the Border
Brothers gang operates. Appellant is a member of the 81st Avenue Locos, a subset of
that gang. Though not a member himself, Castrejon had friends in the Border Brothers.
On March 3, 2012, Border Brothers gang member William “Koon” Mejia was murdered,
and on May 14, 2012, police issued an arrest warrant for Manuel “Tito” Calderon in
connection with that case. Castrejon did not know Mejia, but he had heard about the
murder and had been warned by his friends to be careful. Castrejon was not concerned
because he had no problems with anyone.
       In 2012, Castrejon was selling small amounts of marijuana to three or four regular
customers to supplement his income from his full-time job. When his customers called,
he would arrange to meet them at Tolins Market & Liquor, a store on International
Boulevard, because he did not want to disrespect his uncle’s house by selling drugs there.
       On March 17, 2012, at about 8:00 p.m., Castrejon was waiting for a customer near
the store entrance when appellant approached. Castrejon recognized appellant from
having met him a year and a half earlier, when they hung out together in a group for
about 30 minutes to an hour smoking marijuana in a yard on 83rd Avenue. Castrejon did
not know appellant by name, and had not spoken to him when they were hanging out, but
he assumed appellant was a Border Brother due to the way he was dressed. Appellant’s



                                              2
hair had been short and cropped during the previous encounter, but it was long and curly
when Castrejon saw him at the store.
       When they encountered one another at the store entrance, appellant looked at
Castrejon in a weird way like he was “mean-mugging” him, namely, looking at him “in a
formal way, like he was going to do something.” Castrejon asked appellant if he
remembered him and told him his nickname was Tito. Appellant’s demeanor changed
after hearing this and he appeared to be “furious.” Castrejon was worried and cut off the
conversation. They spoke a second time in the store, but Castrejon did not recall what
was said. Castrejon did not have a weapon and did not threaten appellant or become
angry with him.
       Castrejon was standing near an ice cream cooler when appellant approached him,
pulled out a handgun, and shot him at close range before running out of the store.
Castrejon heard a loud shot and felt a “stinging” and “burning” in his neck. His body
shut down and he could no longer move. Patrons inside the store screamed and ran
outside.
       Shihab Anagar, who owned Tolins, was on his way to work when he heard the
gunshots. He hid near the corner of the store and saw appellant run past with a shiny
object in his hand. Anagar recognized appellant as a customer he had seen a few times
before who had been in the store within weeks of the shooting. When Anagar went
inside, he found Castrejon lying on the floor and told an employee to call the police.
       Oakland Police Department Officer John McDonnell responded to the call and
saw that Castrejon was still conscious though his breathing was labored. Castrejon told
McDonnell he could not feel anything. McDonnell asked who had shot him, and
although Castrejon was “a little hesitant,” he said he had been shot by a Border Brother.
       McDonnell applied pressure to Castrejon’s wounds and waited for paramedics to
arrive. Castrejon was taken to the hospital, where he was treated for two gunshot wounds
on the right side of his body: one on his jawbone and one on his neck near his
collarbone. His jaw was broken and he was bleeding inside his brain. One of the bullets
had penetrated the C4 vertebrae, rendering him a quadriplegic.


                                             3
       Police obtained footage from the store’s surveillance system, which showed the
encounters between appellant and Castrejon and the shooting itself from several different
angles. Oakland Police Department Officer Steven Bang, who was assigned as the lead
investigator, reviewed the surveillance video. After receiving information from a fellow
officer, he obtained a June 2011 booking photograph of appellant from an earlier case
and concluded appellant was the shooter. Appellant has short hair in the booking
photograph, but the shooter in the video has shoulder-length, curly hair.
       Oakland Police Department Detective Leonel Sanchez obtained photographs taken
at William Mejia’s funeral that showed the shooter from the surveillance video (with the
same long hair) sitting at the gravesite with another individual and standing in the crowd
during the ceremony. Sanchez and Bang both identified the man in the photographs as
appellant. Bang acknowledged the hair of the man in the photograph was different than
appellant’s hair in the June 2011 booking photograph (and from appellant’s hair at the
time of his arrest in April 2012), but based his identification on “the structure of the
cheeks, the size of the cheek bones, structure and size of the jaw bone, the nose, the size
and width of the eyebrows, standard things that I use to identify people every day.”
According to Bang, it was not uncommon for suspects to change their appearance to hide
their identity after committing a crime. The practice was “so common it is even written
into [the Oakland Police Department’s] photo lineup admonishment which states that
hairstyles are easily changed.”
       On March 21, 2012, Bang presented a photographic lineup of six pictures (six-
pack) that included appellant’s photograph to two store employees who had witnessed the
shooting. One identified the photograph of appellant as the shooter, but then indicated he
was not 100 percent sure. The other believed appellant’s photograph looked like the
shooter, but he could not say for sure.
       On April 11, 2012, Deputy Fenton Culley of the Alameda County Sheriff’s
Department saw appellant driving a stolen Honda Civic on 90th Avenue and activated his
patrol lights. During the 18-block chase that ensued, appellant entered an intersection
without braking, crossed four lanes of traffic at a speed of about 60 miles per hour,


                                              4
swerved into oncoming traffic to maintain a high speed, and ran through three controlled
intersections without stopping. The Honda became airborne after hitting a speed bump
and crashed into a parked car. Appellant and his passenger ran from the crash scene,
stopping only when Culley drew his gun and ordered them to the ground. The passenger
obeyed, but appellant began running again and was taken into custody by another officer.
Appellant had short hair at the time of his arrest.
       On April 25, 2012, Officer Bang showed Castrejon a six-pack lineup that
included appellant’s booking photograph and Castrejon identified appellant as the person
who shot him. Castrejon also identified appellant at trial.
       The prosecution’s theory at trial was that when Castrejon identified himself as
“Tito,” appellant mistakenly believed he was the Emmanuel “Tito” Calderon who was
arrested on March 6, 2013, for the murder of appellant’s fellow Border Brother William
Mejia. In addition to the evidence described above, Inspector Eugene Guerrero of the
Alameda County District Attorney’s Office testified as a gang expert about the history of
the Border Brothers in East Oakland. In response to a hypothetical regarding the
circumstances of the case, he opined that the shooting would have been motivated by
revenge for the murder of Mejia.
       The defense offered was one of mistaken identity. Appellant’s sister, father and
girlfriend testified that appellant was not the person on the surveillance video or in the
pictures taken at Mejia’s funeral, and that on the day of the shooting (which they
remembered because it was one day before appellant’s 18th birthday),2 appellant had the
same short haircut he had at the time of his arrest rather than the longer hairstyle worn by
the shooter in the surveillance video.




       2
         Although still 17 years old at the time of the shooting, appellant was tried as an
adult on the attempted murder count pursuant to Welfare and Institutions Code section
707, subdivision (d).


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                                      DISCUSSION

                          A. Evidence of Informant’s Statement
       Appellant contends the judgment must be reversed because the court allowed the
prosecution to present evidence of statements by an informant linking him to the
shooting. He contends the evidence, though offered for the nonhearsay purpose of
explaining the investigating officer’s conduct, was more prejudicial than probative under
Evidence Code section 352. We disagree.

       1. Relevant Proceedings
       On March 20, 2012, during the investigation of the Castrejon shooting, fellow
Oakland Police Department Officer Melero advised Officer Bang that an informant had
provided information about the identity of the shooter: that his name was “Oscar,” that
he was a male Hispanic who was about 5 feet 10 inches and 165 pounds, that his birthday
was the same day as the shooting, that he was associated with a particular area in East
Oakland, and that he had been shot in the stomach before. Later that same day, Melero
spoke to Bang a second time and advised him that according to the informant, appellant
and the deceased William Mejia were both Border Brothers and a man whose nickname
was “Tito” had killed Mejia. The informant said the Border Brothers thought they had
shot this Tito, but in fact it was the wrong Tito. Bang did not speak to the informant
directly because his or her identity was confidential.
       The prosecution sought to elicit details about what the informant had said to
Melero for the purpose of explaining the subsequent actions taken by Bang during his
investigation. Defense counsel objected on the grounds that the statements were double
hearsay and more prejudicial than probative under Evidence Code section 352. The trial
court agreed with defense counsel that the informant’s statements were inadmissible
hearsay if offered for their truth, and were more prejudicial than probative under
Evidence Code section 352 if offered for the limited purpose of explaining Bang’s
subsequent actions. But it also indicated that if defense counsel pursued a strategy of
showing that the investigation was inadequate because Bang focused prematurely on


                                             6
appellant and did not consider other suspects, then the statements would be admissible so
the jury could make a full assessment as to whether or not what the police did was
reasonable.
       During his cross-examination of Bang, defense counsel asked a number of
questions about whether Bang had investigated other suspects or made any attempt to
interview Border Brothers who might know something about the shooting. Bang testified
that two other names were “thrown out” as suspects but eliminated, and there was no
point in showing their photographs to Castrejon because appellant “matched the image of
the suspect in the video.” Bang also explained that he had not attempted to interview any
other Border Brother.
       Based on the cross-examination regarding Bang’s failure to investigate other
suspects, the prosecutor sought permission to question Bang about the informant’s
statement provided by Officer Melero. Defense counsel conceded he had “opened the
door” under the court’s previous ruling. He objected to the informant’s statement about
the shooter having been previously shot in the stomach, but indicated the “rest of it” was
“okay.” The court ruled that the prosecutor could elicit testimony about the informant’s
statement in its entirety. It gave a limiting instruction advising the jury it could only
consider the conversation for the purpose of explaining Bang’s investigation and conduct
in the case, and not for the truth of the words spoken by the informant.
       Bang testified about the content of the informant’s statement as outlined above and
explained that he used it to locate a booking photograph of appellant, who he determined
was the shooter after comparing the photograph to the surveillance video.

       2. Analysis
       Under Evidence Code section 352, “[a] trial court may exclude otherwise relevant
evidence when its probative value is substantially outweighed by concerns of undue
prejudice, confusion, or consumption of time.” (People v. Scott (2011) 52 Cal.4th 452,
490.) The prejudice that section 352 seeks to avoid “ ‘ “is not the prejudice or damage to
a defense that naturally flows from relevant, highly probative evidence.” [Citations.]



                                              7
“Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or
cause on the basis of extraneous factors. [Citation.]” [Citation.]’ ” (Id. at p. 491.) In
other words, section 352 should be used to exclude relevant evidence “ ‘when it is of
such nature as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but to reward or
punish one side because of the jurors’ emotional reaction.’ ” (People v. Doolin (2009) 45
Cal.4th 390, 439.) “A trial court’s exercise of discretion under section 352 will be upheld
on appeal unless the court abused its discretion, that is, unless it exercised its discretion in
an arbitrary, capricious, or patently absurd manner.” (People v. Thomas (2012) 53
Cal.4th 771, 806.)
       Here, the defense attempted to undermine the prosecution’s case by calling into
question the thoroughness of Officer Bang’s investigation and suggesting that other
Border Brothers who were not contacted by Bang might more closely resemble the
shooter on the surveillance video. When an officer’s state of mind is at issue, an
out-of-court statement relied on to make an arrest may be relevant and admissible to
prove that state of mind. (See People v. Ervine (2009) 47 Cal.4th 745, 774 [statements
admissible to show officer was lawfully performing professional duty when killed as
necessary for special circumstance allegation in murder case]; People v. Marsh (1962) 58
Cal.2d 732, 738 [noting rule that statements an officer relies on to make an arrest are
admissible to show probable cause].) Moreover, “[t]ips that inform law enforcement of
criminal activity may be offered into evidence for the purpose of explaining actions
undertaken pursuant to a criminal investigation; their function, courts reason, is to give
context, rather than to prove criminal activity.” (United States v. Lovelace (7th Cir.
1997) 123 F.3d 650, 652 (Lovelace) [harmless error for government to repeat four times
that an informant had supplied information about the defendant’s whereabouts when
officers’ intent had not been placed at issue by the defense and the evidence was not
necessary to correct any impression of bias or impropriety]; see United States v. Silva
(7th Cir. 2004) 380 F.3d 1018, 1020 [informant’s statement relevant to explain why
police targeted a seemingly random individual].)


                                               8
       Of course, the conduct of the investigation must be relevant to survive an
objection based on the prejudicial nature of such evidence. (Lovelace, supra, 123 F.3d at
p. 653.) Bang’s conduct of the investigation was relevant because his early and exclusive
focus on appellant was placed in issue by the defense. Evidence that he focused on
appellant in response to the informant’s statement as relayed to him by Officer Melero
was relevant to meet the defense theory and to rebut the suggestion that Bang’s failure to
take additional steps was shoddy police work that called into question the results of his
investigation. The trial court did not act arbitrarily or capriciously in concluding that
evidence of the informant’s statement, accompanied by an appropriate limiting
instruction, was more probative than prejudicial under the circumstances.
       Even if we assume the court should have excluded evidence of the informant’s
statements, the error was harmless because it is not reasonably probable appellant would
have achieved a better result if those statements had been excluded. (See People v.
Jandres (2014) 226 Cal.App.4th 340, 357 [state law errors such as erroneous ruling under
Evid. Code, § 352 analyzed under standard of People v. Watson (1956) 46 Cal.2d 818,
836].) The trial court gave a detailed limiting instruction at the time the evidence was
admitted, which we presume the jury followed. (People v. Mendoza (2007) 42 Cal.4th
686, 699-700; People v. Lucero (1998) 64 Cal.App.4th 1107, 1109-1110 [error to admit
hearsay statement of witness to explain why officer lifted shoe print because legality of
defendant’s arrest not at issue, but error harmless because court gave limiting instruction
and other evidence linked defendant to the crime].) Defense counsel was able to
ameliorate the prejudicial effect of the informant’s statement by making the point through
cross-examination that Bang did not know the identity of the informant or anything about
his or her reliability. The jurors viewed a surveillance video clearly showing the
shooter’s face and were able to determine for themselves whether appellant was the same
person. And, the case was a strong one even apart from the surveillance video: appellant
was identified by Castrejon and Anagar, both of whom were familiar with his
appearance; and his flight from police during a high-speed chase a month after the



                                              9
shooting was a disproportionate response to an auto theft, strongly suggesting a
consciousness of guilt for a more serious offense.

                           B. Ineffective Assistance of Counsel
       Appellant contends his trial attorney provided ineffective assistance of counsel
because he did not object to Officer Bang’s testimony that appellant was the shooter in
the surveillance video. He complains that this testimony amounted to an inadmissible lay
opinion and invaded the province of the jury to determine guilt. We disagree.
       “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.”
(People v. Benavides (2005) 35 Cal.4th 69, 92-93 (Benavides), citing Strickland v.
Washington (1984) 466 U.S. 668, 687-688, 693-694.)
       “ ‘Tactical errors are generally not deemed reversible; and counsel's
decisionmaking must be evaluated in the context of the available facts. [Citation.] To
the extent the record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment “unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation . . . .” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624.) “A claim of
ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
       The decision to object to certain evidence is tactical in nature and only rarely will
a failure to object amount to ineffective assistance. (People v. Williams (1997) 16
Cal.4th 153, 215.) Appellant cannot establish that his trial attorney’s failure to object to
Bang’s testimony fell below an objective standard of reasonableness because he has not




                                             10
established that such an objection would have been sustained. (People v. Weaver (2001)
26 Cal.4th 876, 931 [counsel has no duty to make futile objections].)
       A lay witness may give an opinion that is “(a) Rationally based on the perception
of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.” (Evid.
Code, § 800.) Case law has recognized that a lay witness who has personal knowledge of
a subject’s appearance may testify to the identity of that subject in a surveillance photo or
video when such testimony would be of assistance to the trier of fact, even when that
personal knowledge is gained after the commission of the crime. (People v. Larkins
(2011) 199 Cal.App.4th 1059, 1065-1068 (Larkins) [in case involving thefts from health
club lockers, loss prevention manager properly testified that he recognized man in
surveillance videos as defendant because he had viewed him on other surveillance
videos]; People v. Ingle (1986) 178 Cal.App.3d 505, 513 [“where for any reason the
surveillance photo is not conclusive on the identity issue, the opinion testimony of those
persons having knowledge based upon their own perceptions [citation] of defendant’s
appearance at or before the time the crime occurred is admissible on the issue of identity,
and such evidence does not usurp or improperly invade the province of the trier of fact”];
People v. Mixon (1982) 129 Cal.App.3d 118, 128-129 [officers who were familiar with
defendant through a number of prior contacts properly testified that he was the robber in
a surveillance photograph, though he had changed his facial hair by the time of trial];
People v. Perry (1976) 60 Cal.App.3d 608, 611-613 [police officer and parole agent who
knew defendant properly testified he was the robber in a surveillance film; testimony did
not invade the province of the trier of fact and questions about the degree of their
knowledge went to weight of evidence, not its admissibility].)
       Officer Bang personally met with appellant after his arrest and had studied a
number of photographs of him, giving him the personal knowledge necessary to render
admissible his testimony identifying appellant as the shooter. More importantly, the
jurors had access to the video and could make that comparison themselves. (See Larkins,
supra, 199 Cal.App.4th at p. 1068 [“the jurors were able to test the manager’s opinion
that defendant was the person in the 20 to 30 videos because they saw still photos taken


                                             11
from some of the videos and they could test his ability to correctly identify defendant”].)
In light of the defense challenge to the reasonableness of Bang’s investigation, it was
inevitable the jurors would hear evidence from which they could infer that Bang had
focused on appellant because he believed the booking photograph matched the shooter in
the video. A defense objection would not have prevented the jury from learning that
Bang had concluded appellant was the shooter based on appellant’s appearance.
       Even if we assume the court might have excluded some portion of Bang’s
testimony regarding appellant’s identity as the shooter under Evidence Code section 352
or some other provision, we cannot conclude on this record that defense counsel lacked a
tactical purpose in failing to object. The defense at trial was mistaken identity, with one
of the strategies being to show that Bang’s investigation was inadequate and that he had
prematurely (and incorrectly) identified appellant as the shooter, even though it was not
clear from the video that the long-haired man in the surveillance video was the same
person as the short-haired man arrested a month later. If the jurors were persuaded that
appellant’s appearance in the courtroom or in his photographs matched that of the shooter
on the video, Bang’s opinion would be of little import; but if they were uncertain, Bang’s
testimony to the effect that he had not pursued other avenues of investigation because he
was convinced of the shooter’s identity would tend to support the defense position that
Bang’s identification had been premature and that the “real” shooter could have been
found if the police had looked more carefully.
       Finally, appellant has failed to establish prejudice. The evidence of appellant’s
guilt was strong, consisting of an eyewitness identification by the victim, who had met
appellant previously and had spoken to him just prior to the shooting; an eyewitness
identification of appellant by the store owner, who had previously seen appellant in the
store more than once; two more tentative eyewitness identifications by store employees
who witnessed the shooting; appellant’s reckless flight from officers when he was
arrested a month later; and a likely motive arising from the nickname the victim shared
with the person believed to have killed William Mejia. Most importantly, the jurors
could clearly see the shooter’s face in the video itself and could compare it to the other


                                             12
photographs of appellant and his appearance in the courtroom to render their own
decision about appellant’s guilt. It is not reasonably probable that if defense counsel had
objected to Bang’s testimony that appellant was the shooter in the video, appellant would
have obtained a more favorable verdict. (Benavides, supra, 35 Cal.4th at pp. 92-93.)

                                   C. Cumulative Error
       Appellant contends the cumulative effect of the two asserted errors requires
reversal. We have rejected the merits of appellant’s arguments and concluded that any
error was harmless; “[c]onsidering them together, we likewise conclude that their
cumulative effect does not warrant reversal of the judgment.” (People v. Bolden (2002)
29 Cal.4th 515, 567-568.)
                                      DISPOSITION
       The judgment is affirmed.




                                                 NEEDHAM, J.



We concur.




JONES, P.J.




BRUINIERS, J.




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