Filed 11/19/13 P. v Valentin CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B244615

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA091099)
         v.

JEREMY VALENTIN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Charles D. Sheldon, Judge. Affirmed.


         California Appellate Project, Jonathan B. Steiner and Ann Krausz, 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, Scott A. Taryle and Timothy M.
Weiner, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       Appellant Jeremy Valentin appeals from the judgment in which a jury convicted
him of one count of second degree robbery in violation of Penal Code section 211,1 a
felony. The jury also found true the allegation that appellant personally used a firearm in
violation of section 12022.53, subdivision (b). In a bifurcated trial, the trial court found
true that appellant had served four prior prison terms pursuant to section 667.5,
subdivision (b). The trial court sentenced appellant to a prison term of 13 years,
consisting of the midterm of three years on the robbery count plus 10 years on the firearm
enhancement. The trial court struck the prior prison terms.
       Appellant contends that the trial court abused its discretion by precluding him
from presenting expert testimony on eyewitness identification. We affirm.
                                          FACTS
Prosecution Case
       On December 26, 2011 around 7:30 p.m., Sergio Caraveo (Caraveo), the victim,
was running in his neighborhood in San Pedro. Before stopping to drink from a water
fountain at the intersection of South Crescent Avenue and West 21st Street, he saw
appellant and another man sitting on the front porch of a house on South Crescent
Avenue. When he finished drinking, Caraveo started stretching. Appellant grabbed
Caraveo’s shoulder and told him he had a gun. Appellant held a gun to the right side of
Caraveo’s head and ordered him to empty his pockets. Appellant then turned Caraveo
around, so that they were facing each other about one foot apart. A streetlight was on,
and Caraveo could see appellant’s face and that appellant had acne scars. Appellant was
wearing blue jeans, a black jacket and a red hat.
       Caraveo responded that he did not have anything in his pockets because he
had been running. Appellant said, “I don’t give a fuck where you just came from.”
Caraveo emptied his pockets and gave appellant his iPod, which was Caraveo’s
Christmas present from the prior day. Appellant took the iPod and returned to the house



1
       All further statutory references are to the Penal Code unless otherwise indicated.

                                              2
where Caraveo had seen him on the porch. The man who had been with appellant on the
porch acted as a lookout.
        Caraveo went home, then drove back to South Crescent Avenue with his older
brother and his cousin so that he could get the correct address of the house for the police.
When he saw appellant and the other man on the porch, Caraveo said to his brother, “that
was them.” While Caraveo waited for the police to arrive, appellant left the house on
South Crescent Avenue and went through an alley. The other man also left the house.
       Appellant was arrested on January 4, 2012, at the house on South Crescent
Avenue while police were investigating a different incident. Without hesitation, Caraveo
identified appellant in a six-pack photographic lineup on January 11, 2012.
Defense Case
       Appellant testified that on December 26, 2011, he was staying at the South
Crescent Avenue house, which his friend Kim Larsen (Larsen) was renting. Between
6:00 and 7:00 p.m., appellant was in the house having sex with a woman named
“Bonnie.” When appellant started to leave the house sometime after 7:00 p.m., he
walked past Daniel Balderrama (Balderrama) and a man he did not know, who were
sitting on the front porch of the house. A car pulled up, and two people started shouting
about how their brother had just been robbed and that they wanted to fight somebody to
retrieve what was stolen. Balderrama and the other man ran inside the house.
Appellant’s ride showed up and he left to go to dinner. He eventually met Larsen at a
nearby bar, and returned home around 2:00 a.m. Appellant was wearing plaid shorts and
a white T-shirt the day of the robbery.
       Larsen saw Balderrama run into her home carrying an iPod. Balderrama was
wearing a t-shirt, pants and a red hat with the letter “B” on it.
       During cross-examination, the defense investigator conceded that Caraveo had
identified appellant as the robber, and that Caraveo stated that Balderrama was not the
robber when shown a picture of Balderrama.




                                               3
                                        DISCUSSION
       Appellant contends that the trial court abused its discretion by precluding him
from presenting expert testimony on eyewitness identification, given that his defense was
mistaken identity.
The Trial Court Did Not Abuse its Discretion in Precluding Expert Eyewitness
Identification Evidence
       A. Procedural History
       Prior to trial, appellant moved for the appointment of Dr. Robert W. Shomer, an
eyewitness identification expert. The trial court granted the motion. Appellant then
moved for additional funds to compensate Dr. Shomer for his expected testimony, and
the trial court granted the motion. The prosecution then filed a motion to exclude
Dr. Shomer’s testimony on the grounds that it would be irrelevant and prejudicial. The
trial court granted the motion, stating: “[J]urors are smart, [a] very high percentage of
them are smart. [¶] I have had 1,200 trials. I know that from personal experience in
talking to them after the trial as well as during the voir dire. . . . [¶] At the end of the
case when all the evidence is in, [the defense] can argue things that have to do with
whether the ID is any good. [¶] And so you are covered in that respect . . . .”
       B. Applicable Law
       “When an eyewitness identification of the defendant is a key element of the
prosecution’s case but is not substantially corroborated by evidence giving it independent
reliability, and the defendant offers qualified expert testimony on specific psychological
factors shown by the record that could have affected the accuracy of the identification but
are not likely to be fully known to or understood by the jury, it will ordinarily be error to
exclude that testimony.” (People v. McDonald (1984) 37 Cal.3d 351, 377 (McDonald),
overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896.) Our Supreme
Court later stated, “McDonald does not apply when an eyewitness identification is
‘substantially corroborated by evidence giving it independent reliability.’” (People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 290–291.) The McDonald court cautioned
that it did not intend to open the flood gates to expert testimony on psychological factors

                                               4
affecting eyewitness testimony, and expected that “such evidence will not often be
needed.” (McDonald, supra, at p. 377.) The decision to admit or exclude eyewitness
expert testimony is a matter within the trial court’s discretion and is reviewed for an
abuse of discretion. (Ibid.)
       C. Analysis
       The trial court did not abuse its discretion in precluding the expert evidence on
eyewitness identification for three reasons.
       First, contrary to appellant’s position, the victim Caraveo’s eyewitness
identification of appellant was corroborated by other evidence. Under McDonald, this is
reason alone to exclude expert testimony on the matter. (McDonald, supra, 37 Cal.3d at
p. 377.) Caraveo’s brother testified that when he and Caraveo returned to the South
Crescent Avenue house, Caraveo immediately identified appellant. Appellant was later
arrested at the house, indicating that he indeed lived there. Though Larsen implicated
Balderrama, she testified that she saw an iPod, confirming that Caraveo’s device was
stolen. Also, when shown a photograph of Balderrama, who the defense claimed could
be liable for the robbery, Caraveo did not identify him as the robber, and instead
maintained that appellant was the individual who stole his iPod at gunpoint.
       Second, Caraveo’s eyewitness identification of appellant was far more reliable
than that in McDonald, where our Supreme Court held that the trial court had improperly
excluded Dr. Shomer’s testimony. In McDonald, where the victim was shot in a busy
intersection at rush hour, only four of the prosecution’s seven eyewitnesses identified the
defendant in the courtroom, and their testimony revealed that they were not confident
about their identifications. (McDonald, supra, 37 Cal.3d at pp. 356–358.) One
eyewitness even unequivocally testified that the defendant was not the shooter. (Id. at
p. 358.) None of the witnesses made a positive unequivocal identification during the
pretrial photographic lineup. In addition, parked cars in front of the altercation and cars
driving past the intersection created a limited and blocked view of the murder. (Id. at
p. 356.) No other evidence connected the defendant to the crime. (Id. at p. 360.) The
defense presented six witnesses who testified that at the time of the shooting the

                                               5
defendant was in another state visiting a relative, and this alibi was corroborated by mail
and telephone records. (Ibid.)
       Here, Caraveo identified appellant immediately after the robbery when he went
back to South Crescent Avenue with his brother. He also identified appellant in a six-
pack photographic lineup two weeks later, and his identification was unequivocal and
made without hesitation. When shown a photograph of Balderrama, Caraveo stated that
Balderrama was not the man who robbed him. Caraveo also identified appellant in court.
Additionally, Caraveo’s view of appellant during the robbery was not obstructed.
Caraveo was standing face-to-face with appellant about one foot apart. The overhead
street light was on, allowing Caraveo to see appellant’s distinguishing facial features,
such as acne scars. The California Supreme Court cited these same reasons—close
proximity, lightened area, and positive identifications—in finding eyewitness
identification evidence to be stronger than that in McDonald. (People v. Sanders (1995)
11 Cal.4th 475, 509 [affirming exclusion of an eyewitness identification expert in a case
in which a defendant killed four people while robbing a restaurant].)
       Finally, expert eyewitness identification testimony was not necessary in this case
to explain the psychological factors that could have affected the reliability of Caraveo’s
identification. Appellant cites such factors as fear, fatigue, stress, poor lighting, memory
decay and age difference as factors necessitating expert testimony.2 We agree with the
People that these psychological factors are issues ordinary jurors can decipher and
understand without the aid of an expert. Ordinary people understand that being robbed at
gunpoint is a stressful and scary event; poor lighting can reduce the ability to see; fatigue
can weaken one’s ability to think clearly; memory fades over time; and younger people
tend to make less reliable identifications. Testimony from an expert would not have
added anything to such common knowledge. (See People v. Plasencia (1985) 168
Cal.App.3d 546, 555, where this division previously held that Dr. Shomer’s testimony
was not relevant, stating “The jury did not need edification on the obvious fact that an


2
       At the time of the crime, Caraveo was 17 years old and appellant was 32 years old.

                                              6
unprovoked gang attack is a stressful event or that the passage of time frequently [affects]
one’s memory.”) Further, a “particularly important” reason expert testimony was
required in McDonald was that the identifications were cross-racial. (McDonald, supra,
37 Cal.3d at p. 376.) That was not an issue here.
       Additionally, the jury was instructed with CALJIC No. 2.92, which identifies
various factors that could affect the accuracy of a witness’s identification of the
perpetrator, including the stress the witness was under at the time of observation, the
witness’s capacity to make an identification, whether the witness identified the
perpetrator in a photographic lineup, the passage of time, whether the witness was certain
about the identification, and “[a]ny other evidence relating to the witness’[s] ability to
make an identification.” Testimony from an expert would not have added to these
factors. (See People v. Goodwillie (2007) 147 Cal.App.4th 695, 725 [finding no error in
exclusion of expert evidence where CALJIC No. 2.92 was given].) Even the McDonald
court recognized that such jury instructions would focus the jury’s attention toward any
reliability issues regarding eyewitness identification. (McDonald, supra, 37 Cal.3d at
p. 377, fn. 24.)
       We conclude that the trial court did not abuse its discretion in precluding appellant
from presenting expert eyewitness identification evidence.3




3
      We therefore find no merit to appellant’s contention that his constitutional rights
were violated.

                                              7
                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                         ______________________________, J.
                                               ASHMANN-GERST


We concur:



_______________________________, P. J.
           BOREN



_______________________________, J.*
           FERNS




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            8
