Filed 11/26/13 P. v. Cuevas CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062707

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN283441)

LUIS GERALDO CUEVAS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Aaron H.

Katz, Judge. Affirmed as modified.



         Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and

Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
          A jury found Luis Geraldo Cuevas guilty of committing multiple robberies. (Pen.

Code, § 211; subsequent section references are to this code unless otherwise indicated.)

Cuevas pleaded guilty to being a felon in possession of a firearm (former § 12021,

subd. (a)(1)) and admitted three prior convictions for which he had served a prison

sentence (§ 667.5, subd. (b)), one of which also qualified as both a serious felony

(§§ 667, subd. (a)(1), 1192.7, subd. (c)) and a strike under the "Three Strikes" law.

(§§ 667, subds. (b)-(i), 1170.12.) The court sentenced Cuevas to prison for an aggregate

term of 28 years, four months.

          Cuevas appeals, contending the court erred by admitting certain testimony of the

People's expert witness and by staying instead of striking the one-year enhancement for

the prison-sentence prior conviction that also qualified as a serious felony prior

conviction. We modify the judgment to strike the one-year enhancement but otherwise

affirm.

                                               I.

                                       BACKGROUND

          A series of six bank robberies occurred over 10 months in North San Diego

County. Some of the robberies were committed by a single robber, others by two. In all

six robberies, the video surveillance system of the banks recorded the incident. The

robber or robbers dressed in disguises, usually baggy clothes, sunglasses, and a hat; used

a bag to collect the money; and handed the teller a handwritten note on lined notebook

paper stating, "This is a robbery, give me all your fifties and hundreds," or something

similar. Five of the six robberies occurred at bank branches located inside grocery stores.

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       Oscar Maldonado, an acquaintance of Cuevas, committed the sixth bank robbery

at a stand-alone bank located in a shopping center. Prior to this robbery, Cuevas and his

girlfriend bought Maldonado's disguise and ate lunch with him, and they were inside the

bank seconds before the robbery. Maldonado wore a black sweatshirt, a black fedora-

style hat, sunglasses and a pink bandana, and handed a handwritten note to the teller

which read, "This is a robbery, give me all your hundreds and fifties." The teller gave

Maldonado "bait money" containing a GPS tracking device.

       Police followed the signal from the GPS tracking device and stopped a vehicle

Maldonado was in. In the vehicle, police found a black fedora-style hat, a pink bandana,

and a Target bag containing cash and the GPS tracker. Police subsequently searched

Cuevas's apartment and found multiple disguises, including a blue shirt that was worn in

one of the robberies.

       The only issue contested at trial was the identity of the robber(s). Three different

eyewitnesses identified Cuevas as the bank robber. In an effort to discredit the

eyewitness identifications, Cuevas established that he had tattoos at the time of the

robberies and that none of the eyewitnesses remembered seeing tattoos on the robber. In

response, the People's expert witness, James Pringle, an FBI agent of 17 years and the

North San Diego County primary FBI bank robbery investigator for 12 years, testified

about the use of disguises during robberies. One type of disguise he discussed was the

concealment of tattoos during a robbery.

       The following testimony of Pringle is at issue on appeal (:



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"[Prosecutor]       All right. Now, we've heard a lot of testimony about tattoos
                    in this case. As an investigator, has it been your experience
                    that robbers will conceal their tattoos?

"[Pringle]          Yes.

"[Prosecutor]       And, I guess, how many bank robberies would you say you've
                    investigated over the course of your career?

"[Pringle]          Several hundred.

"[Prosecutor]       And based on your experience, is it unusual for witnesses to
                    not notice tattoos?

"[Cuevas's counsel] Objection. Calls for a conclusion.

"[The court]        Hold on.

"[Prosecutor]       Based on his training and experience.

"[The court]        Sustained.

"[Prosecutor]       As an investigator of bank robberies, does it cause you any
                    concern if a victim or witness didn't identify a particular
                    tattoo?

"[Cuevas's counsel] Objection, Your Honor. Calls for a conclusion and irrelevant.

"[The court]        Sustained as phrased.

"[Prosecutor]       Agent Pringle, when you're getting witness descriptions,
                    when you're interviewing people for a robbery, are one of the
                    things you ask for are identifying marks?

"[Pringle]          Yes.

"[Prosecutor]       Based on your training and experience, if a witness does not
                    describe a particular mark on a suspect, . . . what does that
                    mean to you in terms of your investigation? How much
                    weight do you put on that?

"[Cuevas's counsel] I'm going to make an objection as being irrelevant.


                                     4
"[The court]        Overruled. I'll permit that.

"[Pringle]          Not much weight.

"[Prosecutor]       Why not?

"[Pringle]          I know that those types of physical marks, like scars and
                    tattoos, are items that are easily concealed. So I don't put a
                    lot of weight into them. Although on the flip side, if a teller
                    tells me the person had a specific tattoo, then, yes, I'm going
                    to be interested in that. If they didn't see a tattoo, I'm not
                    going to be so concerned about that.

"[Prosecutor]       And do you have specific case experience where bank robbers
                    cover up their tattoos?

"[Pringle]          Yes.

"[Cuevas's counsel] I'll make an objection as irrelevant, Your Honor.

"[The court]        Overruled.

"[Prosecutor]       What are some ways they do that?

"[Pringle]          Makeup, clothing, actually altering the tattoo to make it look
                    like a different tattoo.

"[Prosecutor]       And have you had . . . real life examples of cases where that's
                    occurred?

"[Pringle]          Yes.

"[Prosecutor]       Based on your training and experience, is it difficult to cover
                    up a tattoo with just a little bit of makeup?

"[Pringle]          It is not difficult at all."




                                       5
                                              II.

                                       DISCUSSION

       Cuevas contends the trial court committed two reversible errors: (1) admission of

Pringle's testimony that he gives little weight to an eyewitness's failure to notice a tattoo

on a bank robber; and (2) imposing and staying, instead of striking, the one-year

enhancement for the prison-sentence prior conviction that also qualified as a serious

felony prior conviction. As we shall explain, we reject Cuevas's claim of evidentiary

error but accept his claim of sentencing error.

A.     Claim of Evidentiary Error

       Cuevas contends Pringle's testimony, that a witness's failure to observe a particular

mark does not deserve much weight because bank robbers often conceal scars and tattoos

as part of their disguise, was not beyond the common knowledge of the jury and invaded

the exclusive province of the jury. The People counter that Cuevas forfeited this claim of

error; but even if he preserved it, he loses on the merits because the challenged testimony

assisted the jury, and any error in admitting it was harmless. We hold Cuevas properly

preserved his claim of error, but the claim has no merit.

       1.     Forfeiture

       The People argue that Cuevas forfeited the argument he raises on appeal because

he failed to object at trial on the grounds he raises on appeal, namely, that Pringle's

testimony that he gives little weight to an eyewitness's failure to notice a bank robber's

tattoo was improper expert testimony or that it usurped the jury's function. Cuevas

counters that both arguments were preserved on appeal by the objections he made at trial,

                                              6
because the objections fairly apprised the court of its duty to decide whether the

challenged testimony was improper or usurped the jury's function. We agree with

Cuevas.

       To preserve a claim of erroneous admission of evidence for appeal, a party must

make a timely and specific objection at trial. (Evid. Code, § 353, subd. (a); People v.

Pollock (2004) 32 Cal.4th 1153, 1181.) Although no particular form of objection is

required, the objection must fairly inform the trial court of the specific reason or reasons

for the objection. (People v. Zamudio (2008) 43 Cal.4th 327, 354.) A party may object

to the opinion testimony of an expert on the ground that the testimony is not sufficiently

beyond common experience and would not assist the trier of fact. (Evid. Code, § 801,

subd. (a).) Expert testimony that invades the province of the jury in weighing the

evidence cannot assist the trier of fact (People v. Torres (1995) 33 Cal.App.4th 37, 47),

and testimony that cannot assist the trier of fact is not relevant (Evid. Code, § 210; People

v. Vang (2011) 52 Cal.4th 1038, 1046 (Vang)). Additionally, "[i]n a criminal case, the

objection will be deemed preserved if, despite inadequate phrasing, the record shows that

the court understood the issue presented." (People v. Scott (1978) 21 Cal.3d 284, 290.)

       Here, Cuevas objected to Pringle's testimony on relevancy grounds. He argues on

appeal that the testimony was both not beyond the common knowledge of the jury and

usurped the role of the jury, and therefore was of no assistance to the jury. Because, as

we have explained, evidence that does not assist the trier of fact is irrelevant, Cuevas

objected on the proper grounds. Furthermore, the record shows the trial court understood

the issue presented by Cuevas's objections. The court discussed at sidebar the concerns

                                              7
over the expert testimony and decided to rule on objections contemporaneously, and the

question was rephrased three times before the court was satisfied the testimony was

admissible. Thus, Cuevas's objections at trial preserved the argument he raises on appeal.

       2.     Merits

       On the merits, Cuevas contends Pringle's testimony, that he gives little weight to

an eyewitness's failure to see a tattoo on a suspect because in his experience bank robbers

will often cover up their tattoos, was improper for two reasons: (1) it was not beyond the

common knowledge of the jury, and (2) it invaded the exclusive province of the jury to

weigh the evidence. The People respond that Pringle's investigation of several hundred

bank robberies made his testimony " 'beyond common experience,' " and that his

testimony did not invade the province of the jury because it was limited to how much

weight during an investigation he attributes to an eyewitness's failure to notice a tattoo on

a robber. We conclude there was no reversible error in admission of the challenged

testimony.

       We review a trial court's decision to admit or exclude expert testimony for abuse

of discretion. (People v. Jones (2013) 57 Cal.4th 899, 946; People v. Lindberg (2008) 45

Cal.4th 1, 45 (Lindberg).) "[A] trial court does not abuse its discretion unless its decision

is so irrational or arbitrary that no reasonable person could agree with it." (People v.

Carmony (2004) 33 Cal.4th 367, 377.) "Although a trial court has a great deal of

discretion when it comes to admitting expert testimony, 'this discretion is not absolute.' "

(Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1169.) It is the exclusive

province of the jury to weigh and resolve any conflicts that exist in the evidence. (People

                                              8
v. Ochoa (1993) 6 Cal.4th 1199, 1206.) An "expert must not usurp the function of the

jury." (People v. Humphrey (1996) 13 Cal.4th 1073, 1099 (Humphrey).) Thus, an

expert's opinion on how much weight a jury should give a certain fact is improper

because it invades the exclusive province of the jury. (Summers, at p. 1183.) Further,

"[w]here the jury is just as competent as the expert to consider and weigh the evidence

and draw the necessary conclusions, then the need for expert testimony evaporates."

(Vang, supra, 52 Cal.4th at p. 1054.) However, " ' "[t]he jury need not be wholly ignorant

of the subject matter of the [expert's] opinion in order to justify its admission[.]" ' "

(People v. Farnam (2002) 28 Cal.4th 107, 162-163.) "In determining the admissibility of

expert testimony, 'the pertinent question is whether, even if jurors have some knowledge

of the subject matter, expert opinion testimony would assist the jury.' " (Lindberg, at

p. 45.)

          The portion of Pringle's testimony challenged by Cuevas assisted the jury in

determining the credibility of the eyewitness identifications. The substance of that

testimony was that during an investigation, Pringle would not rule out an eyewitness

identification if the witness failed to see a tattoo on the suspect, because bank robbers

often conceal their tattoos. Pringle did not "usurp the function of the jury" (Humphrey,

supra, 13 Cal.4th at p. 1099) by telling the jurors how much weight they should give the

identifications of the eyewitnesses who failed to notice Cuevas's tattoos. Furthermore,

although the subject matter of the challenged testimony might not have been completely

outside the common knowledge of the jury, it was based on Pringle's extensive

experience investigating bank robberies, experience most jurors do not have. Pringle's

                                                9
testimony also responded to Cuevas's attempt to discredit the eyewitnesses'

identifications (based on their failures to observe Cuevas's tattoos during the robberies)

by providing a reason why a witness might not observe tattoos. The jury could then

consider that reason in determining how much weight to give the eyewitness

identifications. Thus, since Pringle's testimony was based on his specialized knowledge

and experience and would assist the jury, the trial court properly admitted it. (Evid.

Code, § 801; see Lindberg, supra, 45 Cal.4th at pp. 45-46.)

       Even if we were to accept Cuevas's contention that Pringle's testimony implied

how the jury should weigh the eyewitness identifications, any error in the admission of

the challenged testimony was harmless. The erroneous admission of expert testimony

warrants reversal of a judgment only if it is reasonably probable that a result more

favorable to the appellant would have been reached absent the error. (Cal. Const., art. VI,

§ 13; Evid. Code, § 353, subd. (b); People v. Pearson (2013) 56 Cal.4th 393, 446; People

v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)1 Generally, admission of improper

expert testimony is harmless when there is other "strong" or "overwhelming" evidence of


1      We reject Cuevas's conclusory assertion that any error must be reviewed under the
more stringent federal "harmless beyond a reasonable doubt" standard (Chapman v.
California (1967) 386 U.S. 18, 24) because the admission of Pringle's testimony rendered
Cuevas's trial "fundamentally unfair" in violation of his federal constitutional due process
rights. "[G]enerally, violations of state evidentiary rules do not rise to the level of federal
constitutional error." (People v. Benavides (2005) 35 Cal.4th 69, 91.) Cuevas has not
explained why this general rule should not apply to the routine claim of evidentiary error
he asserts here. We thus apply the Watson standard. (See, e.g., People v. DeHoyos
(2013) 57 Cal.4th 79, 118 (DeHoyos) [applying Watson standard to claim expert
testimony was erroneously admitted over relevancy objection]; People v. Prieto (2003)
30 Cal.4th 226, 246, 247 [applying Watson standard to claim expert testimony was
erroneously admitted over objections based on Evid. Code, §§ 352, 801].)
                                              10
defendant's guilt (DeHoyos, supra, 57 Cal.4th at p. 119; Pearson, at p. 446; accord

People v. Coleman (1989) 48 Cal.3d 112, 144) and the jury is properly instructed on how

to use expert testimony (People v. Davis (2009) 46 Cal.4th 539, 605 (Davis)). That is the

situation here.

       The evidence introduced against Cuevas at trial was overwhelming. Video

surveillance recorded all of the robberies. Gloves, masks, other disguises, and a blue

shirt that was worn in one of the robberies were found in Cuevas's apartment. Cuevas

was acquainted with Maldonado, a known bank robber; bought the disguise Maldonado

used in one of the robberies; and participated in that robbery. The similarities between

the robberies indicated they were committed by the same person. Finally, multiple

eyewitnesses identified Cuevas as the culprit.

       Furthermore, the trial court thoroughly instructed the jury concerning eyewitness

identification and expert testimony. Using CALCRIM No. 315, the trial court listed

several factors the jurors should consider in determining the truthfulness and accuracy of

eyewitness testimony identifying the defendant. The court also specifically instructed the

jury to consider whether "the witness [was] able to identify any unique marks or

features." The court instructed the jury on expert witness testimony pursuant to

CALCRIM No. 332. That instruction advised the jury it was "not required to accept"

expert opinions "as true or correct. The meaning and importance of any opinion are for

you to decide." Absent evidence to the contrary, we presume the jurors generally

understood and faithfully followed these instructions. (See, e.g., People v. Homick

(2012) 55 Cal.4th 816, 867; People v. Sanchez (2001) 26 Cal.4th 834, 852.)

                                            11
       Accordingly, because the evidence against Cuevas was overwhelming and the

court correctly instructed the jury on how to evaluate eyewitness identification testimony

and expert opinion testimony, it is not reasonably probable the jury would not have found

Cuevas guilty had the trial court excluded Pringle's testimony about how much weight he

attributes to an eyewitness's failure to notice a bank robber's tattoo. (See DeHoyos,

supra, 57 Cal.4th at p. 119; Davis, supra, 46 Cal.4th at p. 605.) Thus, error, if any, in

admitting that testimony would not warrant reversal of the judgment. (Cal. Const.,

art. VI, § 13; Evid. Code, § 353, subd. (b).)

B.     Claim of Sentencing Error

       Cuevas contends the trial court erred by imposing and staying execution of the

one-year enhancement prescribed by section 667.5, subdivision (b) for his prior

conviction in case No. SCN185363, because that conviction also qualified as a prior

serious felony conviction for which the court imposed a five-year enhancement under

section 667, subdivision (a)(1). The People concede this sentencing error. We accept the

concession.

       "[W]hen multiple statutory enhancement provisions are available for the same

prior offense, one of which is a section 667 enhancement, the greatest enhancement, but

only that one, will apply." (People v. Jones (1993) 5 Cal.4th 1142, 1150.) The proper

remedy is to strike rather than stay the lesser enhancement. (Id. at p. 1153; People v.

Perez (2011) 195 Cal.App.4th 801, 805.) We therefore modify the judgment by striking

the one-year enhancement.



                                                12
                                     DISPOSITION

       The judgment is modified by striking the one-year enhancement under

section 667.5, subdivision (b) for Cuevas's prior conviction in case No. SCN185363. As

so modified, the judgment is affirmed. Upon issuance of the remittitur, the trial court

shall prepare an amended abstract of judgment reflecting this modification and shall

forward a certified copy of the amended abstract to the Department of Corrections and

Rehabilitation.



                                                                                 IRION, J.

WE CONCUR:



              MCCONNELL, P. J.



                       BENKE, J.




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