Filed 10/22/15 P. v. Mendoza CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040647
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F25147)

         v.

RENE PEREZ MENDOZA,

         Defendant and Appellant.


         Defendant Rene Perez Mendoza was charged and convicted of selling heroin
(Health & Saf. Code, § 11352, subd. (a)). At trial, the critical issue was the identification
of the person who sold heroin to an informant cooperating in a controlled buy under law
enforcement supervision. The trial court suspended imposition of sentence and granted
formal probation to defendant.
         Defendant presents multiple claims on appeal. (See Pen. Code, § 1237, subd. (a).)
We find no reversible error and affirm.
                                                             I
                                                        Evidence
         On June 13, 2013, Matthew Van Nuys, an informant who had been working with
Detective Alex Martin since October 2012, made a controlled buy in the Beach Flats
neighborhood of Santa Cruz. On that date, Detective Martin, who was the senior agent of
the Santa Cruz County Anticrime Team, considered Van Nuys to be a reliable informant.
Van Nuys had worked for the detective in approximately a dozen narcotics purchases and
nothing had occurred to make the detective question Van Nuys’s truthfulness.
       Another law enforcement agent had introduced Van Nuys to Detective Martin.
The agent had told the detective that Van Nuys was facing criminal charges in federal
court and he was willing to work as an informant in the Santa Cruz area.
       On June 13, 2013, Detective Martin and other officers, all in plainclothes and
equipped with two-way radios, were stationed in various locations. Before the buy,
Detective Martin searched Van Nuys to ensure that he was not carrying any money,
weapons, or drugs. The detective provided Van Nuys with $100 in twenty-dollar bills
and an audio transmitter. Detective Martin turned on a video camera, which looked like a
car key fob and held about a half an hour of memory, and handed it to Van Nuys.
Van Nuys was instructed to go into the Beach Flats area of Santa Cruz in the vicinity of
Poets Park and another nearby park.
       During the controlled buy, unbeknownst to Van Nuys, the transmitter was also
making a backup audio recording. Detective Martin had a high-power camera and an
audio listening device with which to listen to any conversation in which Van Nuys
engaged. The weather was clear, warm, and dry and it was daylight.
       Van Nuys was never completely out of sight of the officers. Van Nuys was sitting
on a park bench in Poets Park when he first saw a man riding down Raymond Street
toward him. When the man was about five or six feet away and looking directly at
Van Nuys, Van Nuys nodded his head and made eye contact with him. The man stopped
next to Van Nuys and Van Nuys asked him if he knew where he could get some “black,”
the street term for tar heroin.
       Agent Mancini, who was watching the park, informed Detective Martin that
Van Nuys had made contact with a Hispanic man on a blue bicycle. The contact was
made at approximately 3:35 p.m. The detective, who was not in visual contact, could



                                            2
hear Van Nuys conversing with someone. The person spoke in English with a Spanish
accent and had a “kind of a high pitched voice.”
      The bicyclist, who was wearing a white T-shirt and blue jeans, said it would cost
$100 and Van Nuys said okay. The man had a military or buzz haircut and spoke broken
English. Van Nuys was trying to take a good look at him. The man said he would be
back in two minutes and took off down Park Place.
      Agent Mancini reported that the Hispanic male on the bicycle was riding toward
him, which Detective Martin knew from the agent’s location was southbound toward the
Beach Boardwalk. The man rode past Agent Mancini, who was not able to get a good
view of him, and down Park Place. Van Nuys remained seated on the park bench.
      About 10 minutes later, the man returned. Agent Mancini reported the bicyclist is
returning. The man got off his bike on Park Place and stayed in the area where the street
turns and becomes Uhden Street; he did not return to the bench where Van Nuys was
sitting. The man motioned for Van Nuys to come over to him. Detective Martin heard
the rustling of pants. The man walked quickly up Uhden Street and Van Nuys had to
“hustle to catch up.” The man stopped by a truck.
      Deputy Hansen, another officer stationed in the vicinity, reported he had “a visual”
of the bicyclist and Van Nuys walking up Uhden Street and moving behind a vehicle. As
Van Nuys approached, the man set something, which was rolled up in a business card,
down on the hood of a truck. The man asked Van Nuys whether he worked for the
government, a question which Detective Martin heard, and Van Nuys indicated he did
not. Van Nuys handed the money to the man and looked at him. While the man looked
at the money, Van Nuys opened the package just a little bit to make sure heroin was in
there. Van Nuys asked the man’s name and the man replied “Chaparro,” which means
“shorty” in Spanish; the detective heard that exchange. The man rode quickly away on
Uhden Street toward 3rd Street.



                                            3
       Deputy Hansen reported seeing the bicyclist traveling north on Uhden Street
toward 3rd Street and Van Nuys walking in the opposite direction back toward the park.
Detective Martin directed Deputy Hansen to attempt to follow the man.
       Deputy Hansen saw the bicyclist make a left turn onto 3rd Street, a right turn onto
the Riverside Bridge, a right turn onto San Lorenzo Boulevard, and a left turn onto Ocean
Street. The deputy lost sight of him in the 100 block of Ocean Street.
       Detective Martin received agents’ reports that Van Nuys was returning to the park
and he was headed to the detective’s car. After about a half an hour, the video camera
stopped recording. The video recording ends with Van Nuys leaving the drug deal and
walking through and out of Poets Park.
       About five seconds after the video ended, Van Nuys came into Detective Martin’s
view. When Van Nuys reached the detective’s vehicle, he showed the detective what he
had purchased, a small amount of heroin wrapped in cellophane and rolled in a business
card. It was stipulated that substance was later found to contain heroin and have a gross
weight, which included the packaging material, of .63 grams. The business card was for
landscaping services and Rene Perez was listed as the “Owner/Operator” on the card.
       Van Nuys had no money on him when he returned to Detective Martin. Van Nuys
described the seller to Detective Martin as a very short Hispanic male who spoke with an
accent, identified himself as “Chaparro,” and rode a blue bicycle. Van Nuys told the
detective that the transaction occurred behind a black truck parked on Uhden Street,
Van Nuys paid $100 to the dealer, and the dealer placed the drugs on the hood of the
vehicle.
       At trial, Van Nuys identified defendant as the person with whom he did the
transaction on June 13, 2013. Van Nuys explained that he had looked at the seller with
the intent of remembering his face. He recognized defendant in still images taken from
the video recording. He recognized the business card in which the heroin had been
wrapped. Van Nuys had bought methamphetamine for himself from street dealers and, in

                                            4
his experience, it was not uncommon for street dealers to provide contact information,
such as a telephone number, to clients.
       Van Nuys testified that he was a methamphetamine addict. He had a number of
convictions for felony possession of narcotics and he was twice convicted of receiving or
possessing stolen property. In September of 2011, Van Nuys was charged with
possession with intent to distribute methamphetamine and heroin in a federal case. Two
counts each carried a ten-year-to-life mandatory minimum sentence and a third count
carried a five-year-to-life mandatory minimum sentence. As part of a plea deal requiring
Van Nuys to testify against codefendants in the federal prosecution, the two more serious
charges were dropped and he pleaded guilty to the lesser charge in 2011. The plea
agreement also allowed Van Nuys the opportunity to potentially receive a sentence lower
than the mandatory minimum, or perhaps even avoid prison altogether, pursuant to a
government motion if Van Nuys provided substantial assistance to the government.1 His
sentencing was put over.
       Van Nuys explained that during the previous year he had been working as a
confidential informant and performing controlled buys. He had been working primarily
with Detective Martin. As part of those operations, Van Nuys was instructed to take
careful note of each seller’s face, his clothing, the way the person spoke, and anything
distinctive so that Van Nuys could later identify the seller. Van Nuys knew that he would
be required to come into court and identify the seller.
       Although the video recording of the drug transaction on June 13, 2013 did not
provide a good view of everything, Detective Martin was able to stop the recording and


       1
        See Federal Sentencing Guidelines, section 5K1.1 (“Upon motion of the
government stating that the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed an offense, the court
may depart from the guidelines”).



                                             5
retrieve some still images from the computer screen. One still image showed the suspect,
wearing a white T-shirt, standing next to his blue bicycle near a black pickup truck.
Another still image showed the suspect standing next to his bicycle and looking toward
the camera. In that image, the man’s face is dark but his short stature, body shape,
clothing, and hairstyle can be seen. A third still image showed the suspect, a short
Hispanic male, standing next to his bicycle. His clothing and his shoes can be seen; he is
wearing a white T-shirt. While “[t]here is a little bit more light around the face area” in
that image, the face is “still dark and hard to decipher.” A fourth still image showed the
suspect looking over his right shoulder as he is holding onto his bicycle. His hairstyle,
facial features, and body shape can be seen. A fifth still image captured the suspect
below the head. In it, he is wearing a white T-shirt, blue jeans, and white Nike tennis
shoes. At trial, Detective Martin estimated, based on the video recording, that the suspect
was between five feet and five feet, four inches tall.
       Detective Martin provided some screen shots to an officer with the Santa Cruz
Police Department, Karina Cecena, who worked in the general area of Beach Flats. He
asked her to look for a matching suspect and “ID him.”
       On July 9, 2013, based on images provided to her by Detective Martin, Officer
Cecena made contact with defendant while on patrol. He was sitting in the parking lot of
a 7-Eleven on Laurel Street and next to him was a blue, Giants brand bicycle. Defendant
was wearing a blue T-shirt, black cargo pants, and white Nike shoes. At trial, Officer
Cecena identified defendant as the individual with whom she spoke on July 9, 2013.
       Most of Officer Cecena’s contact with defendant was conducted in Spanish.
Defendant was very friendly and cooperative. Officer Cecena documented the contact on
a field identification card (FI card). It stated defendant’s name, Rene Perez Mendoza, his
date of birth, his address of 127 Ocean Street and unit number, and his cell phone
number. The FI card described defendant as a male Hispanic, five feet, two inches tall,
weighing 145 pounds, with a medium build, short black hair, a goatee, brown eyes, and a

                                              6
tattoo of “R” and “P” on the left, inner forearm. His occupation was reportedly a
self-employed landscaper. Officer Cecena took photographs of defendant.
       Officer Cecena subsequently called the cell phone number that defendant had
provided and a male answered. When she asked to whom she was speaking, the person
who answered said, “Rene.”
       Officer Cecena provided Detective Martin with photographs of defendant. She
also provided the detective with the FI card from her contact with defendant.
       In Detective Martin’s opinion, the person in the photographs provided by Officer
Cecena resembled the person in the video recording of the drug transaction with respect
to facial features, hairstyle, and stature. Their shoes appeared to be the same. The
detective did not believe that the bicycle in Officer Cecena’s photographs and the bicycle
in the video recording were same bicycle even though both were blue.
                                             II
                                        Discussion
A. Rebuttal Closing Argument
1. Background
       Defendant contends that the prosecutor improperly “lowered and shifted the
burden of proof by repeatedly arguing that the jury had to believe several facts in order to
find [him] not guilty.” He asserts that the prosecutor, like the prosecutor in People v.
Centeno (2014) 60 Cal.4th 659 (Centeno) and in People v. Hill (1998) 17 Cal.4th 800
(Hill), improperly “invited the jurors to jump to a conclusion based on a limited
consideration of the evidence and trivialized and oversimplified the jury’s task.” He
maintains that “the prosecutor was not discussing the treatment of circumstantial
evidence” and, if the prosecutor was discussing the reasonableness of inferences from the
circumstantial evidence, he “confound[ed] that concept with the concept of proof beyond
a reasonable doubt.” Defendant claims that the prosecutor’s “comments made the trial
fundamentally unfair because they prevented the jury from fairly considering all of the

                                             7
evidence under the high standard of proof beyond a reasonable doubt.” He argues that
reversal is required because the prosecutorial misconduct was not harmless beyond a
reasonable doubt.
         In his rebuttal argument, the prosecutor told the jury that his burden was to
establish the case beyond a reasonable doubt but he was not required to eliminate all
doubt. He urged the jurors to “impartially compare and consider all evidence” when they
were trying to decide whether he had met that burden.
         Without objection, the prosecutor argued: “And when you are considering whether
I prove this case beyond a reasonable doubt, it’s pretty much this: [¶] Do you find it
reasonable, what the defense is presenting as far as argument, that it was not his client?
And to believe the defense, is it reasonable? . . . [I]f you find that I have not met my
burden, obviously, the defendant walks out. He’s not guilty. But in order to believe the
defense’s theory and find the defendant not guilty, you are pretty much saying
Mr. Van Nuys was willing to risk his bargain for this defendant, this small time offense
here.”
         The prosecutor continued: “To believe the defense theory is that there’s a person
that looks like the defendant, speaks broken English, is a Spanish speaker, and that
person that looks like the defendant and is a Spanish speaker with broken English is
dealing drugs within a half mile of the defendant’s house, and to believe . . . the defense
theory that that person that looks like the defendant, has broken English, selling drugs
within a half mile of the defendant’s house, also has the defendant’s business card on
him, looks like the defendant. [¶] And this business card that’s on this person that looks
like the defendant who is selling drugs within a half mile of the defendant’s house not
only has his business card, but the business card with accurate information relevant to the
defendant, also has similar, if not the same, kind of shoes as the defendant. You have to
believe . . . all that has been coincidence.”



                                                8
       At this point, defense counsel objected that the prosecutor’s argument “shifts the
burden of proof.” The court thereupon informed the jurors: “Ladies and gentlemen, with
respect to arguments, that’s just essentially what they are. You are to follow the law as I
instruct you in terms of the burden of proof.”
       The prosecutor then continued: “So in order to believe the defense theory or
believe that the defendant is not guilty, you have to believe that there’s a person out there
who—” Defense counsel interrupted by objecting that the argument was “a total burden
shift” and he asserted that “[y]ou don’t have [to] believe those things to find not guilty
here.” The trial court then stated: “The burden is upon the People to prove the defendant
committed the crime. Okay? [¶] So with that in mind, you may continue your argument,
Mr. Delgadillo.”
       Defense counsel argued: “In order to find the defendant not guilty, you have to
believe that there’s a person out there that looks like the defendant, speaks broken
English, is carrying the defendant’s business card, is dealing drugs within a half mile of
the defendant’s house, is wearing similar, if not the same, shoes, and when he’s finished
with the transaction, goes within the same block of the defendant’s house. Is that
reasonable? [¶] Ladies and gentlemen, . . . I will tell you, obviously not.”
       After the prosecutor had finished his argument, defense counsel indicated that he
wanted to request a jury admonition before the court gave its final instructions and sent
the jury to deliberate. A discussion was held at the sidebar. On the record, out of the
jury’s presence, defense counsel asserted that the jurors merely had to find that the
prosecutor had not met the burden of proof and the prosecutor’s argument had imposed
“a proof burden” on the defense. The trial court found the prosecutor’s argument
concerned the reasonable inferences to be drawn from circumstantial evidence. Defense
counsel asked the trial court to give an admonition that “the only thing that the jury need
find to return a not guilty verdict is that they do not have an abiding conviction that the
defendant is guilty beyond a reasonable doubt.” The court denied the request.

                                              9
2. Analysis
       The cases relied upon by defendant are distinguishable. In rebuttal closing
argument in Centeno, supra, 60 Cal.4th 659, the prosecutor used “a diagram showing the
geographical outline of California” and posited a hypothetical criminal case to explain the
People’s burden of proof (id. at pp. 664, 676) and then “urged the jury to convict based
on a ‘reasonable’ view of the evidence.” (Id. at p. 662.) The California Supreme Court
observed that “[c]ourts have repeatedly cautioned prosecutors against using diagrams or
visual aids to elucidate the concept of proof beyond a reasonable doubt [citations] . . . .”
(Ibid.) The court concluded that “[t]he argument unduly risked misleading the jury about
the standard of proof” and reversed the judgment. (Ibid.)
       The Supreme Court explained: “The use of an iconic image like the shape of
California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to
demonstrate the process of proving guilt beyond a reasonable doubt. These types of
images necessarily draw on the jurors’ own knowledge rather than evidence presented at
trial. They are immediately recognizable and irrefutable. Additionally, such
demonstrations trivialize the deliberative process, essentially turning it into a game that
encourages the jurors to guess or jump to a conclusion.” (Centeno, supra, 60 Cal.4th at
p. 669.) The court emphasized that jurors “may not go beyond the record to supply facts
that have not been proved” and it is “misleading to analogize a jury’s task to solving a
picture puzzle depicting an actual and familiar object unrelated to the evidence.” (Id. at
p. 670.) The prosecutor in this case, however, did not use an iconic image to illustrate the
burden of proof.
       The Supreme Court in Centeno was also troubled by a separate problem with the
prosecutor’s argument, namely that the argument “strongly implied that the People’s
burden [of proof] was met if [the People’s] theory was ‘reasonable’ in light of the facts
supporting it.” (Centeno, supra, 60 Cal.4th at p. 671.) While the prosecutor may
permissibly “argue that the jury may reject impossible or unreasonable interpretations of

                                             10
the evidence and to so characterize a defense theory[] [citations],” it is “error for the
prosecutor to suggest that a ‘reasonable’ account of the evidence satisfies the
prosecutor’s burden of proof.” (Id. at p. 672.) In that case, the prosecutor had
improperly “left the jury with the impression that so long as her interpretation of the
evidence was reasonable, the People had met their burden.” (Ibid.)
       The Supreme Court made clear that, while a prosecutor is entitled to “point out
that interpretations proffered by the defense are neither reasonable nor credible”
(Centeno, supra, 60 Cal.4th at p. 673), it is “error to state that ‘a defendant has a duty or
burden to produce evidence, or a duty or burden to prove his or her innocence.’
[Citations.]” (Ibid.) “[E]ven if the jury rejects the defense evidence as unreasonable or
unbelievable, that conclusion does not relieve or mitigate the prosecutorial burden [of
proof].” (Ibid.) It concluded: “[T]he prosecutor did not simply urge the jury to ‘ “accept
the reasonable and reject the unreasonable” ’ in evaluating the evidence before it.
[Citation.] Rather, she confounded the concept of rejecting unreasonable inferences, with
the standard of proof beyond a reasonable doubt. She repeatedly suggested that the jury
could find defendant guilty based on a ‘reasonable’ account of the evidence. These
remarks clearly diluted the People’s burden.”2 (Centeno, supra, at p. 673.) In this case,
however, the prosecutor did not suggest that he had met the burden of proof by merely
offering a reasonable interpretation of the circumstantial evidence.


       2
          Although the court in Centeno determined that defendant had forfeited his claim
of prosecutorial misconduct by failing to timely object, the Supreme Court reversed the
judgment for ineffective assistance of counsel. (Centeno, supra, 60 Cal.4th at
pp. 674-678.) It could “conceive of no reasonable tactical purpose for defense counsel’s
omission” in failing to object to the prosecutor’s rebuttal argument. (Id. at p. 676.) It
found that, “[g]iven the closeness of the case and the lack of any corrective action, there
is a reasonable probability that the prosecutor’s argument caused one or more jurors to
convict defendant based on a lesser standard than proof beyond a reasonable doubt.”
(Id. at p. 677)


                                              11
       In Hill, supra, 17 Cal.4th at p. 831, the prosecutor repeatedly indicated to the jury
in rebuttal closing argument that there must be some evidence on which the jury could
base a doubt. The California Supreme Court stated: “[The prosecutor’s] comments are
somewhat ambiguous. [The prosecutor], however, committed misconduct insofar as her
statements could reasonably be interpreted as suggesting to the jury she did not have the
burden of proving every element of the crimes charged beyond a reasonable doubt.
(People v. Marshall [(1996)] 13 Cal.4th [799,] 831; People v. Gonzalez (1990) 51 Cal.3d
1179, 1215.) Further, to the extent [the prosecutor] was claiming there must be some
affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law,
for the jury may simply not be persuaded by the prosecution’s evidence. (Cf. CALJIC
No. 2.61 (6th ed. 1996 bound vol.) [‘the defendant may choose to rely on the state of the
evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt
every essential element of the charge’].)” (Id. at pp. 831-832.) It stated: “Although the
question arguably is close, . . . it is reasonably likely [the prosecutor’s] comments, taken
in context, were understood by the jury to mean defendant had the burden of producing
evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude [the
prosecutor] committed misconduct by misstating the law.”3 (Id. at p. 832.)
       In this case, the prosecutor did not suggest that defendant had a duty or burden to
produce evidence raising a reasonable doubt as to his guilt or proving his innocence. The
prosecutor’s argument was in essence that the cumulative circumstantial evidence was
susceptible to only one reasonable inference, namely that defendant sold heroin to

       3
         In Hill, the Supreme Court found many more instances of prosecutorial
misconduct. It stated: “[A]lthough we might find any individual instance of prosecutorial
misconduct or other error harmless standing alone, we cannot ignore the combined
prejudicial effect these many missteps had on the overall fairness of the trial. Finding the
cumulative prejudice flowing from the combination of prosecutorial misconduct and
other errors rendered defendant’s trial fundamentally unfair, we reverse the judgment in
all respects.” (Hill, supra, 17 Cal.4th at p. 815; see id. at pp. 845-847.)


                                             12
Van Nuys on June 13, 2013. Although the prosecution indicated that the jurors would
have to reject that circumstantial evidence and the reasonable inferences drawn from that
evidence in order to find the defendant not guilty, it is not reasonably likely that the jury
understood the prosecutor’s argument as lowering or shifting the burden of proof.
       “When attacking the prosecutor’s remarks to the jury, the defendant must show
that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not
lightly infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements. [Citation.]’ [Citation.]” (Centeno, supra, 60
Cal.4th at p. 667.) “ ‘When argument runs counter to instructions given a jury, we will
ordinarily conclude that the jury followed the latter and disregarded the former, for “[w]e
presume that jurors treat the court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.”
[Citation.]’ [Citation.]” (Id. at p. 676.)
       Here, the trial court instructed: “[B]efore you may rely on circumstantial evidence
to find the defendant guilty, you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant is guilty. If you can draw
two or more reasonable conclusions from the circumstantial evidence and one of those
reasonable conclusions point to the innocence and another to guilt, you must accept the
one that points to innocence.” It fully instructed the jury on the presumption of
innocence and the People’s burden of proving defendant guilty beyond a reasonable
doubt.4 It also told the jury: “You must follow the law as I explain it to you even if you

       4
        The trial court instructed: “A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People prove a defendant guilty beyond a
reasonable doubt. Whenever I tell you the People must prove something, I mean they
must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof
(continued)

                                              13
disagree with it. If you believe that the attorneys comments on the law conflict with my
instructions, you must follow my instructions.”
       Closing argument followed the court’s general instructions to the jury. In
response to defense counsel objections during the prosecutor’s rebuttal argument, the trial
court reminded the jury that argument was merely argument, directed the jury “to follow
the law as I instruct you in terms of the burden of proof,” and it reiterated that it was the
People’s burden “to prove the defendant committed the crime.”
       In light of the entire argument and instruction, we find no reasonable likelihood
that the jurors understood the prosecutor’s argument as reducing the People’s burden of
proof or imposing any evidentiary burden on the defense.
B. Detective Martin’s Testimony
1. Objection on the Ground of “Inappropriate Opinion”
       According to defendant, the court improperly allowed the prosecutor, over defense
counsel’s objection, to elicit Detective Martin’s opinion as to whether Van Nuys’s
identification of him was credible. He asserts that the court’s evidentiary ruling was error
because “a police officer cannot opine on the veracity of particular statements” made by a
witness.
       Defendant mischaracterizes the record. Detective Martin was not giving his
opinion as to the credibility of Van Nuys’s identification of defendant. Rather, he was
answering a series of question related to the repercussions or consequences that

that leaves you with an abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to some possible or
imaginary doubt. In deciding whether the [P]eople have proved their case beyond a
reasonable doubt, you must impartially compare and consider all the evidence that was
received throughout the entire trial. [¶] Unless the evidence proves defendant guilty
beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not
guilty.” The court further instructed: “The People have the burden of proving beyond a
reasonable doubt that it was the defendant who committed the crime. If the People have
not met this burden, you must find the defendant not guilty.”


                                              14
Van Nuys would experience if he lied or was dishonest with the detective or anyone in
the undercover operation.
       The prosecutor asked Detective Martin. “[A]re you aware that there was any
repercussions or consequences if Mr. Van Nuys lies or is dishonest with you or anyone
from the operation?” The detective answered yes. The prosecutor inquired, “And what
are those consequences that you are aware of?” The detective answered, “If he’s deemed
unreliable, meaning dishonest or untrustworthy, his employment with the task force ends,
and whatever case consideration he had with the federal courts would end also.” The
prosecutor then asked, “What would make Mr. Van Nuys unreliable?” Detective Martin
indicated that Van Nuys would be deemed unreliable “[i]f he was untrustworthy” or “if
he was lying or stealing.” The prosecutor asked, “Would that include pointing a finger at
someone that was not part of a drugs transaction?” At this point, defense counsel
objected on several grounds, including “inappropriate opinion.” The objection was
overruled and Detective Martin answered, “That would be untrustworthy and lying.”
       Detective Martin’s testimony indicated that Van Nuys had a motivation to tell the
truth so that he would be considered a reliable informant and secure the benefit of his
agreement to participate in the undercover operations. A “jury may consider in
determining the credibility of a witness any matter that has any tendency in reason to
prove or disprove the truthfulness of his testimony at the hearing, including but not
limited to” “[t]he existence or nonexistence of a bias, interest, or other motive.” (Evid.
Code, § 780, subd. (f); see Evid. Code, § 210 [“relevant evidence” defined].)
       Detective Martin did not give his opinion regarding accuracy or truthfulness of
Van Nuys’s statement identifying defendant as the heroin seller. Therefore, the cases
cited by defendant concerning the impropriety of a lay witness giving his opinion
regarding the veracity of another’s statement are inapposite. Defendant has failed to
show the trial court abused its discretion in overruling the “inappropriate opinion”
objection.

                                             15
2. “Photos Speak for Themselves” and “Improper Speculation” Objections
       At trial, the prosecutor asked Detective Martin a number of questions about the
photographs taken of defendant by Officer Cecena. The prosecutor inquired, “Now, is
there anything about these photographs [provided by Officer Cecena] that caught your
attention related to your investigation.” The detective answered yes. The prosecutor
said, “Tell us.” The detective responded, “One, that the person in this photo resembled
the person in my videos of the drug transaction.” He added, “Both in facial features,
hairstyle, stature, as well as I noted that the shoes were the same shoes, same brand.”
Defense counsel objected to, and moved to strike, the word “same” and the trial court
sustained the objection.
       The prosecutor then asked Detective Martin, “Anything about the shoes [in
Cecena’s photographs] that caught your attention in relation to the investigation and what
you have as far as these still photographs?” Defense counsel interposed an objection on
the ground the “photos speak for themselves” and the court overruled it. Defense counsel
immediately objected on grounds of “improper speculation” and the court overruled that
objection as well. The prosecution posed the question again, “Detective, anything about
the shoes that related to the photographs in the still shots?” The detective answered, “The
shoes that this person was wearing when he was photographed by Officer Cecena appear
to be the same shoes that our suspect was wearing.”
       Defendant now argues that Detective Martin’s opinion regarding the similarity of
the photographs of defendant and the still images of the heroin seller was inadmissible on
a number of different grounds. Defendant claims that a witness generally cannot testify
to the ultimate inferences to be drawn from the evidence5 and quotes from an opinion


       5
         We note that “[t]estimony in the form of an opinion that is otherwise admissible
is not objectionable because it embraces the ultimate issue to be decided by the trier of
fact.” (Evid. Code, § 805.)


                                            16
recognizing the limited admissibility of lay opinion regarding the veracity of another
person’s statement. (See People v. Melton (1988) 44 Cal.3d 713, 744.) He maintains that
the jurors “could assess the photos for themselves and determine [whether] there were
any similarities between the persons in the two sets of photos” and they “did not need any
special expertise from Martin or anyone else, in order for them to view and compare the
photos.” Defendant also asserts that it was “simply irrelevant whether the subject in the
two sets of photos looked similar” and “Cecena’s photos . . . merely confused the issue”
as to “whether [he] was the person who sold the heroin . . . .”
       Defendant’s general assertions go beyond the objections actually interposed and
overruled. “Evidence Code section 353, subdivision (a) allows a judgment to be reversed
because of erroneous admission of evidence only if an objection to the evidence or a
motion to strike it was ‘timely made and so stated as to make clear the specific ground of
the objection.’ ” (People v. Demetrulias (2006) 39 Cal.4th 1, 20.) “To satisfy Evidence
Code section 353, subdivision (a), the objection or motion to strike must be both timely
and specific as to its ground. An objection to evidence must generally be preserved by
specific objection at the time the evidence is introduced . . . .” (Id. at p. 22.) To the
extent that defendant is now raising claims beyond his specific evidentiary objections at
trial, he forfeited them.
       Defendant alternatively suggests that insofar as defense counsel failed to timely
object to the admission of Detective Martin’s testimony on the grounds now raised,
counsel should be excused on grounds of futility. Nothing in the appellate record
supports a claim of futility.
       We next consider the specific objections interposed by defense counsel. An
objection that something “speaks for itself” is not a specific evidentiary objection under
California law although courts have sometimes treated it as an objection under the former
best evidence rule (now the secondary evidence rule). (See e.g. People v. Sloss (1973) 34
Cal.App.3d 74, 86; Brown v. Southern Pacific Co. (1949) 92 Cal.App.2d 639, 646;

                                              17
Akopoff v. Mesropian (1929) 96 Cal.App. 128, 129.) Defense counsel’s objection that
“photos speak for themselves” did not preserve an objection that the testimony was
irrelevant or beyond the proper scope of expert or lay opinion. (See Evid. Code, § 353;
People v. Marks (2003) 31 Cal.4th 197, 228 [“A general objection to the admission or
exclusion of evidence, or one based on a different ground from that advanced at trial,
does not preserve the claim for appeal.”]; People v. Gutierrez (1993) 14 Cal.App.4th
1425, 1434 [objection on ground of vagueness was insufficient to preserve issue whether
testimony was beyond proper scope of expert testimony].)
       We nevertheless assume without deciding that defendant’s “improper speculation”
objection preserved a limited objection that the question asked for conjectural lay
opinion. (See Evid. Code, §§ 702, subd. (a) [testimony of lay witness “concerning a
particular matter is inadmissible unless he has personal knowledge of the matter”],
800, subd. (a) [generally, a lay witness’s testimony in the form of an opinion must be
“[r]ationally based on the perception of the witness”].) “ ‘[A]n examiner’s question
asking a lay witness to testify to facts that the witness has not personally observed, or to
state an opinion not based on his or her own observations, calls for speculation and
conjecture by the witness and is prohibited by’ Evidence Code sections 702 and 800.
(1 Jefferson’s Cal. Evidence Benchbook, [(Cont.Ed.Bar 4th ed. 2013) Competency,
Examination, and Credibility of Witnesses], § 28.56, p. 534.)” (People v. Rodriguez
(2014) 58 Cal.4th 587, 631.) But, to the extent that defendant is now arguing that
Detective Martin’s lay opinion was inadmissible because it was not helpful to the jurors,
who were equally able to evaluate the photos and the video recording and still images,
that objection was forfeited because defense counsel did not object on that specific
ground below. (See Evid. Code, §§ 353, 800, subd. (b) [lay witness’s testimony in the
form of an opinion must additionally be “[h]elpful to a clear understanding of his
testimony”].)



                                             18
       As to the limited evidentiary objection cognizable on appeal, we find People v.
Leon (2015) 61 Cal.4th 569 (Leon) instructive. In Leon, the defendant objected at trial
that a detective’s identification of him as the person in a surveillance video of a robbery
was inadmissible lay opinion. (Id. at p. 600.) On appeal, the defendant contended that
“the trial court erred when it allowed a detective to identify him as the person shown on
the surveillance videos of two robberies.” (Ibid.)
       The California Supreme Court reviewed the relevant law: “A lay witness may
offer opinion testimony if it is rationally based on the witness’s perception and helpful to
a clear understanding of the witness’s testimony. (Evid.Code, § 800.) ‘[T]he identity of
a person is a proper subject of nonexpert opinion . . . .’ (People v. Perry (1976) 60
Cal.App.3d 608, 612 (Perry ); accord, People v. Mixon [(1982)] 129 Cal.App.3d [118,]
127 (Mixon).)” (Leon, supra, 61 Cal.4th at p. 601.) Appellate courts review a trial
court’s ruling on an objection of improper lay opinion for abuse of discretion. (Id. at
p. 600.)
       “Court of Appeal decisions have long upheld admission of testimony identifying
defendants in surveillance footage or photographs. In Perry, the defendant argued an
identification had to be based on the officer’s perception of a crime. (Perry, supra, 60
Cal.App.3d at p. 613.) The court disagreed, finding it proper for officers to predicate
their opinion on ‘contacts with defendant, their awareness of his physical characteristics
on the day of the robbery, and their perception of the film taken of the events.’ (Ibid.)
The testimony was also helpful because the defendant had changed his appearance by
shaving his mustache before trial. (Ibid.) Similarly, the court in Mixon, upheld
identification of the defendant in a robbery surveillance photograph by officers who had
numerous contacts with him and were unequivocal in their identification. (Mixon, supra,
129 Cal.App.3d at pp. 130-131; see also People v. Ingle (1986) 178 Cal.App.3d 505, 514
[allowing similar testimony by robbery victim based on her observation of defendant
during the crime].)” (Leon, supra, 61 Cal.4th at p. 601.)

                                             19
       Defendant Leon attempted to distinguish the foregoing cases on the ground that
the detective “did not have contact with him before the crimes. (See People v. Ingle,
supra, 178 Cal.App.3d at p. 513.)” (Leon, supra, 61 Cal.4th at p. 601.) The Supreme
Court concluded that was “a distinction without a difference.” (Ibid.) The detective was
“familiar with defendant’s appearance around the time of the crimes” since “[t]heir
contact began when defendant was arrested . . . .” (Ibid.) The court made clear that
“[q]uestions about the extent of [the detective’s] familiarity with defendant’s appearance
went to the weight, not the admissibility, of his testimony. (Perry, supra, 60 Cal.App.3d
at p. 613.)” (Ibid.)
       Leon and the line of cases discussed in Leon are not applicable here since
Detective Martin did not identify defendant as the heroin seller in the video recording or
the still images of the controlled buy. Consequently, the detective’s familiarity with
defendant’s appearance was not at issue. His comparison of defendant’s shoes in the
photographs taken by Officer Cecena and the perpetrator’s shoes shown in the still
images from the video recording of the controlled buy was based on his personal
observation of those pictures.
       Even if we assume arguendo that the trial court should have sustained the defense
objection of “improper speculation” to Detective Martin’s testimony about the shoes, we
discern no basis for reversal. (Cal. Const., art. VI, § 13 [no reversal for improper
admission of evidence unless it resulted in a miscarriage of justice]; Evid. Code, § 353,
subd. (b) [same].) Jurors saw the photographs of defendant and the video recording and
still images of the controlled buy and were able to compare the appearance of defendant’s
shoes and the perpetrator’s shoes for themselves. Defendant has failed to establish that
there is a reasonable probability the jury would have reached a different result had the
court sustained defense counsel’s “improper speculation” objection. (People v. Watson
(1956) 46 Cal.2d 818, 836 [a miscarriage of justice is declared when “it is reasonably
probable that a result more favorable to the appealing party would have been reached in

                                             20
the absence of the error.”]; id. at p. 837 [standard is “based upon reasonable probabilities
rather than upon mere possibilities”].)
C. Alleged Ineffective Assistance of Counsel
1. Detective Martin’s Testimony Regarding the Similarities of the Images
       Defendant alternatively argues that trial counsel was ineffective because he failed
to timely object, on the grounds now raised, to Detective Martin’s testimony regarding
the resemblance of defendant as he appeared in Officer Cecena’s photographs and the
heroin seller as captured in the video recording of the drug buy. To prevail on an
ineffective assistance of counsel claim, a defendant must satisfy a two-part test by
establishing both counsel’s deficient performance and prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687-689, 694 (Strickland).) A reviewing court may
dispose of a claim of ineffective assistance of counsel without addressing both
components if a defendant makes an insufficient showing as to either prong. (Strickland,
supra, at p. 697.)
       To establish prejudice, a defendant must show “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” (Strickland, supra, 466 U.S. at p. 694.) “In assessing prejudice under
Strickland, the question is not whether a court can be certain counsel’s performance had
no effect on the outcome or whether it is possible a reasonable doubt might have been
established if counsel acted differently. [Citations.]” (Harrington v. Richter (2011) 562
U.S. 86, 111.) “The likelihood of a different result must be substantial, not just
conceivable. [Citation.]” (Id. at p. 112.)
       Here, the jurors saw and evaluated the video recording and still images of the
controlled buy and the photographs of defendant taken by Officer Cecena less than a
month later and they also observed defendant at trial. Van Nuys identified defendant as
the person who sold heroin to him on June 13, 2013 and provided him with defendant’s
business card. Van Nuys had looked at the seller with the intention of remembering what

                                             21
he looked like. Defendant lived in the 100 block of Ocean, which is where Deputy
Hansen lost sight of the person who sold heroin to Van Nuys on June 13, 2013.
Defendant has not shown there is a reasonable probability that the result of the
proceeding would have been different had defense counsel timely and specifically
objected to Detective Martin’s testimony on the grounds now advanced. Consequently,
we reject this ineffective assistance of counsel claim.
2. Officer Cecena’s Testimony Regarding Her Reason for Contacting Defendant
       On direct examination, Officer Cecena testified that Detective Martin gave her
screen shots with instructions to look for a subject that matched the description. She then
testified that, while driving around, she “noticed a subject that matched the description of
the photos that Detective Martin sent to [her].” Defense counsel moved to strike and
then, out of the presence of the jury, made a motion for a mistrial on the ground that the
prosecution had violated an in limine ruling. The court stated that it had granted the
“request that the officer not be allowed to express an opinion before the jury that the
defendant, in her opinion, is, in fact, the person that was in the photograph.”
       When the jury returned, the trial court instructed the jury: “Ladies and gentleman,
the issue of the identity of the person who allegedly sold the contraband in this case is an
issue for the jury to determine. This officer has indicated that, in her opinion, an
individual matched the person depicted in a photograph she was provided. [¶] The Court
is allowing that testimony for the very limited purpose of explaining the officer’s conduct
insofar as contacting and detaining an individual that will be described later in her
testimony. [¶] It is not something that you can consider and use in making the
determination as to the identity of the perpetrator of the crime alleged in this case.”
       Officer Cecena then confirmed that she made contact with defendant on July 9,
2013 because of a photograph provided to her by Detective Martin. When the trial court
gave its general instructions to the jury before deliberations, it stated: “During the trial,
certain evidence was admitted for a limited purpose. Here Officer Cecena used the word

                                              22
“match” to explain why she contacted Mr. Mendoza. You may consider that evidence
only for the purpose and no other. It is not evidence that Mr. Mendoza was, in fact, the
man in the picture.”
       Defendant now asserts that defense counsel provided ineffective assistance by
failing to raise a relevancy objection to Cecena’s testimony as to her reason for stopping
defendant. He argues that counsel had no tactical reason for not objecting to that
testimony. Even if we assume that defense counsel should have objected on relevance
grounds (see People v. Lucero (1998) 64 Cal.App.4th 1107, 1109-1110), defendant fails
to establish prejudice. (See Strickland, supra, 466 U.S. at pp. 687-689, 694, 697;
Harrington v. Richter, supra, 562 U.S. at pp. 111-112.) In light of all the evidence and
the court’s limiting instructions, defendant has not shown “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra, at p. 694.)
D. Cumulative Error
       Defendant argues that multiple errors were cumulatively prejudicial and rendered
his trial fundamentally unfair. “Defendant was entitled to a fair trial but not a perfect
one. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) This is not a
case where cumulative prejudice from multiple trial errors requires reversal. (Cf. Hill,
supra, 17 Cal.4th at pp. 844-847.)
                                      DISPOSITION
       The judgment is affirmed.




                                             23
                                            _________________________________
                                            ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
WALSH, J.*




The People v. Mendoza
H0406476



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