Filed 11/1/18; Opinion following rehearing

                                CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FOURTH APPELLATE DISTRICT

                                             DIVISION TWO



 THE PEOPLE,

          Plaintiff and Respondent,                     E068490

 v.                                                     (Super.Ct.No. FVI1501152)

 RICHARD GARCIA,                                        OPINION

          Defendant and Appellant.




        APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed with directions.

        John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal, Randall

Einhorn, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.




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                                    I. INTRODUCTION

       Following a jury trial, defendant and appellant, Richard Garcia, was convicted of

first degree residential burglary. (Pen. Code, § 459.)1 Defendant admitted having one

prior strike/prior serious felony conviction and one prison prior, and he was sentenced to

14 years in prison, including a five-year consecutive term based on his prior serious

felony conviction. (§ 667, subd. (a) (hereafter § 667(a)).)2 In this appeal, defendant

claims the court abused its discretion and deprived him of his due process right to present

a defense by excluding the expert testimony of Dr. Robert Shomer concerning the

reliability of eyewitness identifications. We find no merits to these claims. But we

remand the matter for resentencing pursuant to Senate Bill No. 1393 (2017-2018 Reg.

Sess.) (S.B. 1393). S.B. 1393 amends sections 667(a) and 1385, subdivision (b)

(hereafter § 1385(b)), effective January 1, 2019, to give courts discretion to dismiss or

strike a prior serious felony conviction for sentencing purposes. In all other respects, we

affirm the judgment.

                        II. FACTS AND PROCEDURAL HISTORY

A. Prosecution Evidence

       Around 10:30 a.m. on April 25, 2014, Richard Knowles, who lived in Barstow,

was returning home from a walk when he observed a large black vehicle parked on the


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

       2  Defendant’s 14-year sentence consists of the middle term of four years for the
burglary, doubled to eight years based on the prior strike conviction, plus five years for
the prior serious felony conviction, plus one year for the prison prior.

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street between his driveway and the driveway of his next-door neighbor, Sherisa Clark.

The vehicle was facing the wrong direction. Knowles also observed a young Hispanic

woman in the driver’s seat of the vehicle and a White male in the back seat behind her. A

second White male came through Knowles’s side gate and got into the back passenger

seat.

        Knowles also observed a Hispanic man walk through Clark’s side gate, down her

driveway, and get into the front passenger seat of the vehicle. The vehicle then drove

away. Later on April 25, Detective Keith Libby showed Knowles a six-pack

photographic lineup containing a photograph of defendant in the first position. Knowles

told the detective that the first photograph “looked like one of the guys” he saw coming

from Clark’s home, but at trial, in October 2015, Knowles and Detective Libby both

testified that Knowles was “hesitant, uncertain” about his identification of defendant as

the Hispanic male. Knowles told the detective he did not look very well at the Hispanic

male’s face.

        At trial in October 2015, Knowles recalled that the Hispanic male was wearing a

“hoodie” and a red plaid flannel shirt, and was “a little bit buffed up” so Knowles did not

want to “mess with him.” Knowles testified he “got a look” at the Hispanic male, but the

“detail” was “lost” to him because he was not wearing his glasses and the incident

occurred quickly. Thus, at trial, Knowles did not “positive[ly]” identify defendant as the

Hispanic male. But Knowles was able to read the vehicle’s license plate number and

called 911 shortly after the vehicle drove away. Department of Motor Vehicle records



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showed the vehicle was a Chevrolet Blazer, registered to defendant, and defendant lived

in Victorville. On April 25, 2014, officers did not find defendant at his Victorville

address.

       The police found signs of forced entry into Clark’s home, including pry marks on

a side door leading into the garage and pry marks on the interior garage door leading into

the home. A blue crowbar which could have made the pry marks and which did not

belong to Clark was found inside the home. Latent fingerprints were taken from inside

the home, but all of the fingerprints that were suitable for comparison matched Clark’s

fingerprints; none of them matched defendant’s fingerprints.

       Clark’s bedroom had been “completely ransacked” and the rest of her home had

been “somewhat ransacked.” A watch, approximately $200 in cash, jewelry, and medical

marijuana were missing. No one had permission to be in Clark’s home or take her

property. Clark did not know defendant. As Clark was leaving her home before the

burglary on April 25, she noticed a large vehicle she had never seen before, parked on her

street several houses away from hers and facing the wrong direction.

       Clark returned home shortly after the burglary, accompanied by her friend,

Daniella Watkins. Outside Clark’s home, Knowles told Watkins that one of the suspects

he saw was a White male with a “purple thing on his cheek.” Watkins told Detective

Libby that the description sounded like Joshua Kemp, who was “like [her] brother-in-

law.” Watkins also testified she had grown up with defendant, who was known as

Richie, and that defendant and Kemp were “good friends.” Before trial, defendant’s



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friend Cassy contacted Watkins and asked whether Watkins would be coming to court,

which made Watkins feel “[t]hreatened.”

       A records check on Kemp revealed he had a purple face tattoo and was wearing a

global positioning system ankle monitor at the time of the burglary as a term of his

“county parole” or Post-Release Community Supervision. Global positioning system

records placed Kemp near Clark’s home at the time of the burglary and showed that

Kemp traveled from Clark’s home to defendant’s home in Victorville after the time of the

burglary. In April 2015, around one year after the burglary, Knowles identified Kemp

from a six-pack photographic lineup as the White man he saw leaving Knowles’s

property. In identifying Kemp, Knowles was “again uncertain” and “hesitant” about his

identification, and was “confused between three of the [six] photos.”

       Defendant was arrested in August 2014 and later made several phone calls from

jail. During one jail call with an unidentified female, defendant said: “I’m really

nervous, I’m just hoping they don’t have no fingerprints, if they don’t then I’m going to

fight that shit.”

       Defendant also made several jail calls to his father. He told his father that “Josh

was pretty much busted. They got him there with a monitor . . . .” Defendant also

mentioned that Clark’s house had been processed for fingerprints, so he did not “want to

keep waiving time” and “wait for fuckin something like that to come up.” He said Cassie

was willing to write a statement for him, and asked his father to ask Kemp’s cousin,




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Rickie, to contact Kemp so that Kemp could make a statement saying he “had nothing to

fuckin do with it.”

       In another jail call, defendant asked his father to “[r]ing Victoria’s mom . . . and

try to set up a witness, saying you know, that I was there at the house the whole time

when that shit happened.” Defendant’s father told defendant that Kemp’s aunt, Kelly,

would testify that defendant was at “[Kelly’s house] the whole day . . . and she didn’t see,

she didn’t hear [defendant’s] truck leave.”

B. Defense Evidence

       In August 2015, Kemp pled guilty to the burglary in this case. At trial, Kemp

testified he took defendant’s Chevrolet Blazer while defendant was asleep at Kelly’s

house, and that defendant “had nothing to do with” the burglary and was not with Kemp

during the burglary. Kemp said he used a blue crowbar to break into the victim’s home.

Shortly after the burglary, Kemp stopped by defendant’s house because he was running

out of gas and knew defendant had gas in his work trailer. Kemp told a defense

investigator he acted alone in committing the burglary, but at trial Kemp said he did not

remember whether another person was with him. Kemp had several prior felony

convictions.

                                    III. DISCUSSION

       Defendant claims the trial court abused its discretion and violated his due process

right to present a defense in refusing to allow Dr. Shomer to testify as a defense expert on

eyewitness identifications. He claims Dr. Shomer’s testimony was necessary to inform



                                              6
the jury of several factors bearing on the reliability of Knowles’s pretrial identification of

him as the Hispanic male Knowles saw leaving Clark’s property following the burglary.

We find no merit to these claims.

A. Relevant Background

       Around one week before trial, the defense informed the prosecution that it would

be proffering the testimony of Dr. Robert Shomer, an expert on the psychological factors

affecting the reliability of eyewitness identifications. The prosecution later filed a motion

to exclude the testimony, arguing, among other things, that it should be excluded because

Knowles’s identification of defendant was “substantially corroborated by evidence giving

it independent reliability.” (People v. McDonald (1984) 37 Cal.3d 351, 377

(McDonald).)

       The court deferred ruling on the motion until after Knowles and other witnesses

had testified and ultimately excluded Dr. Shomer’s testimony on the ground it would be

unduly time-consuming and not “at all” helpful to the jury in evaluating the reliability of

Knowles’s eyewitness identification of defendant. The court pointed out that Dr. Shomer

could not explain anything relevant about eyewitness identifications that a jury could not

understand; the case was based on circumstantial evidence and Knowles’s identification

was not the “reasonable basis” of establishing defendant’s guilt; that Knowles was “far

from certain” of his identification; and any expert testimony concerning six-pack

identification procedures was irrelevant because there was no evidence that Knowles’s

six-pack identification of defendant was “improper.” The court also pointed out that, if



                                              7
Dr. Shomer testified, the court would be inclined to allow the prosecution to call an

expert to contradict or explain Dr. Shomer’s testimony.

B. Applicable Law and Analysis

       Expert opinion testimony is admissible on subjects that are “sufficiently beyond

common experience that the opinion of an expert would assist the trier of fact.” (Evid.

Code, § 801, subd. (a); People v. Chavez (2018) 22 Cal.App.5th 663, 680.) In particular,

expert testimony concerning the reliability of eyewitness identification evidence is

admissible to “inform[] the jury of certain factors that may affect such an identification in

a typical case . . . .” (McDonald, supra, 37 Cal.3d at pp. 370.)

       The psychological factors and other circumstances that may affect an eyewitness

identification are numerous and are listed in CALCRIM No. 315, which was given in this

case. These factors include whether the witness knew or had previous contact with the

person the witness identified, how well the witness could see the person, whether the

witness was under stress when the witness observed the person, whether the witness was

asked to pick the person out of a group or from a photographic or physical lineup, how

certain the witness was when the witness identified the person, whether the witness and

person were of different races, and whether there were any other circumstances that

affected the witness’s ability to make an accurate identification of the person.

(CALCRIM No. 315.)




                                              8
       A trial court has discretion to exclude otherwise relevant evidence if its probative

value is substantially outweighed by the probability its admission will consume undue

time, mislead the jury, or confuse the issues. (Evid. Code, § 352; People v. Scott (2011)

52 Cal.4th 452, 490.) Although a defendant has a “‘general [constitutional] right”’ to

offer a defense through the testimony of his or her witnesses, a state court’s exclusion of

defense evidence under ordinary rules of evidence—including Evidence Code section

352—generally does not infringe upon this right. (People v. Chavez, supra, 22

Cal.App.5th at p. 681; People v. Cornwell (2005) 37 Cal.4th 50, 82.)

       In McDonald, the leading California case concerning expert testimony on

eyewitness identifications (People v. Jones (2003) 30 Cal.4th 1084, 1111), our state high

court said: “[T]he decision to admit or exclude expert testimony on psychological factors

affecting eyewitness identification remains primarily a matter within the trial court’s

discretion; . . . ‘we do not intend to “open the gates” to a flood of expert evidence on the

subject.’ [Citation.] We expect that such evidence will not often be needed, and in the

usual case the appellate court will continue to defer to the trial court’s discretion in this

matter. Yet deference is not abdication. 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




                                               9
the jury, it will ordinarily be error to exclude that testimony.” (McDonald, supra, 37

Cal.3d at p. 377, italics added.)

       Under McDonald, we review a trial court’s ruling on the admissibility of expert

testimony on the psychological factors affecting eyewitness identifications for an abuse

of discretion. (McDonald, supra, 37 Cal.3d at p. 370.) The exclusion of such expert

testimony “is justified only if there is other evidence that substantially corroborates the

eyewitness identification and gives it independent reliability.” (People v. Jones, supra,

30 Cal.4th at p. 1112; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 290-291

[“McDonald does not apply when an eyewitness identification is ‘substantially

corroborated by evidence giving it independent reliability.’”].)

       In determining whether other evidence substantially corroborates an eyewitness

identification and gives it independent reliability, “the court looks to the body of evidence

that corroborates the eyewitness identification, i.e., whether there is substantial evidence

tending to show that the eyewitness identification is itself reliable, in order to assess the

probative value of the expert witness testimony. If there is substantial evidence showing

that the eyewitness testimony is reliable, the trial court may conclude that the probative

value of the expert testimony would not outweigh any prejudicial effect caused by

potential confusion of the issues and/or the amount of time that would be consumed by

such testimony.” (People v. Goodwillie (2007) 147 Cal.App.4th 695, 729-730.)




                                              10
       Here, the court did not abuse its discretion in excluding Dr. Shomer’s expert

testimony. As the court recognized, ample other evidence substantially corroborated

Knowles’s identification of defendant, giving it independent reliability and substantially

reducing the probative value of Dr. Shomer’s testimony. Thus, the court reasonably

concluded that the probative value of Dr. Shomer’s testimony was substantially

outweighed by the probability its admission would consume undue court time. (Evid.

Code, § 352; People v. Goodwillie, supra, 147 Cal.App.4th at pp. 729-730.)

       First, other evidence showed that the “black vehicle” that Knowles saw leaving the

scene of the burglary was defendant’s vehicle. Knowles was able to read the vehicle’s

license number, and Department of Motor Vehicle records showed that the vehicle, a

black Chevrolet Blazer, was registered to defendant. Second, a year after the burglary,

Knowles accurately identified Kemp from a six-pack photographic lineup as the second

man he saw getting into defendant’s vehicle after the burglary.

       Third, Watkins testified that Kemp and defendant were good friends, and Watkins

felt threatened when another friend of defendant’s contacted Watkins and asked whether

Watkins would be coming to court. Fourth, Kemp pled guilty to the burglary and

admitted his involvement at trial. Kemp’s ankle monitor placed him at Clark’s home at

the time of the burglary and at defendant’s home shortly after the burglary.

       Fifth, defendant’s jail calls showed he was concerned that fingerprints taken from

Clark’s home might match his fingerprints and provide the prosecution with evidence that

he committed the burglary. Sixth, defendant’s jail calls also showed he was trying to “set



                                            11
up” an alibi defense, by having several witnesses, including Kemp, say he had “nothing

to do with” the burglary and was not at Clark’s house at the time of the burglary.

       Defendant has also not shown that the exclusion of Dr. Shomer’s testimony

violated his due process right to present defense evidence. Because ample evidence

independently corroborated Knowles’s identification, Dr. Shomer’s testimony was not so

vital to the defense that due process principles required its admission. (People v.

Goodwillie, supra, 147 Cal.App.4th at p. 725; People v. Cornwell, supra, 37 Cal.4th at p.

82.) The exclusion of Dr. Shomer’s testimony did not prevent defendant from arguing

that Knowles’s identification was unreliable. Knowles and Detective Libby both testified

that Knowles was “hesitant” and “uncertain” in his eyewitness identification of

defendant. In addition, the jury was instructed pursuant to CALCRIM No. 315 on the

many factors that may affect the credibility of eyewitness testimony. As the trial court

emphasized, there was nothing about the reliability of Knowles’s identification that a jury

could not understand, or that warranted expert testimony.

       Lastly, any error in excluding Dr. Shomer’s expert testimony was harmless.

(People v. Watson (1956) 46 Cal.2d 818, 836.) We discern no reasonable probability that

defendant would have realized a more favorable result if Dr. Shomer’s testimony had

been admitted, given that other evidence substantially corroborated Knowles’s

identification of defendant and the jury was instructed pursuant to CALCRIM No. 315 on

the factors that may affect the credibility of an eyewitness identification.




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C. Remand for Resentencing

       On September 30, 2018, the Governor signed S.B. 1393 which, effective January

1, 2019, amends sections 667(a) and 1385(b) to allow a court to exercise its discretion to

strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018,

ch. 1013, §§ 1-2.) Under the current versions of these statutes, the court is required to

impose a five-year consecutive term for “any person convicted of a serious felony who

previously has been convicted of a serious felony” (§ 667(a)), and the court has no

discretion “to strike any prior conviction of a serious felony for purposes of enhancement

of a sentence under Section 667.” (§ 1385(b).)

       After our original opinion in this case was filed on October 3, 2018, defendant

petitioned for rehearing claiming that, in light of S.B. 1393, the matter must be remanded

for resentencing so the trial court may exercise its discretion to dismiss or strike the five-

year consecutive term that was imposed based on his prior serious felony conviction.

(§ 667(a).) We granted defendant’s petition for rehearing. We have modified our

original opinion to add this section and to remand the matter for resentencing pursuant to

S.B. 1393 after January 1, 2019, the date S.B. 1393 becomes effective.

       Defendant claims S.B. 1393 applies retroactively to all cases or judgments of

conviction in which a five-year term was imposed at sentencing, based on a prior serious

felony conviction, provided the judgment of conviction is not final when S.B. 1393

becomes effective on January 1, 2019. We agree.




                                              13
       When an amendatory statute either lessens the punishment for a crime or, as S.B.

1393 does, “‘vests in the trial court discretion to impose either the same penalty as under

the former law or a lesser penalty,’” it is reasonable for courts to infer, absent evidence to

the contrary and as a matter of statutory construction, that the Legislature intended the

amendatory statute to retroactively apply to the fullest extent constitutionally

permissible—that is, to all cases not final when the statute becomes effective. (People v.

Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308 & fn. 5; People v. Francis (1969)

71 Cal.2d. 66, 76) [“[T]here is such an inference because the Legislature has determined

that the former penalty provisions may have been too severe in some cases and that the

sentencing judge should be given wider latitude in tailoring the sentence to fit the

particular circumstances.”]; In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent

evidence of contrary legislative intent, “it is an inevitable inference” that the Legislature

intends ameliorative criminal statutes to apply to all cases not final when the statutes

become effective]; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507

[“Retrospective application of a new penal statute is an exception to the general rule set

forth in section 3, which bars retroactive application of new Penal Code statutes unless

the Legislature has expressly provided for such application.”].)

       In enacting S.B. 1393, the Legislature did not expressly declare that S.B. 1393, or

the amendments it makes to sections 667(a) and 1385(b), will apply retroactively to all

judgments of conviction which are not final on January 1, 2019, when S.B. 1393’s

amendments to sections 667 and 1385 go into effect. (People v. Arredondo, supra, 21



                                              14
Cal.App.5th at pp. 509-512 (conc. opn. of Benke, J.) [“When . . . a criminal defendant

argues he or she is entitled to the benefit of new legislation, we must begin with the . . .

presumption, expressly set forth in section 3, that unless there is express language to the

contrary, statutes are prospective only.”].) But the Legislature also did not expressly

declare or in any way indicate that it did not intend S.B. 1393 to apply retroactively, and

S.B. 1393 is ameliorative legislation which vests trial courts with discretion, which they

formerly did not have, to dismiss or strike a prior serious felony conviction for sentencing

purposes. (Stats. 2018, ch. 1013, §§ 1-2.)

       Thus, under the Estrada rule, as applied in Lara and Francis, it is appropriate to

infer, as a matter of statutory construction, that the Legislature intended S.B. 1393 to

apply to all cases to which it could constitutionally be applied, that is, to all cases not yet

final when S.B. 1393 becomes effective on January 1, 2019. (People v. Superior Court

(Lara), supra, 4 Cal.5th at pp. 307-308 & fn. 5; In re Estrada, supra, 63 Cal.2d at pp.

744-745 [“If the amendatory statute lessening punishment becomes effective prior to the

date the judgment of conviction becomes final then, in our opinion, it, and not the old

statute in effect when the prohibited act was committed, applies.”]; People v. Conley

(2016) 63 Cal.4th 646, 657 [“The Estrada rule rests on an inference that, in the absence

of contrary indications, a legislative body ordinarily intends for ameliorative changes to

the criminal law to extend as broadly as possible, distinguishing only as necessary

between sentences that are final and sentences that are not.”].)




                                              15
       The People concede that if defendant’s judgment of conviction is not final on

January 1, 2019, then S.B. 1393 will apply retroactively to defendant’s judgment. They

argue, however, that defendant’s judgment “should be final” by January 1, 2019, and in

any event, defendant’s S.B. 1393 claim is not “ripe for adjudication” or justiciable, and

should be left for a future forum, because his judgment “should” be final by January 1,

2019. (People v. Ybarra (1988) 206 Cal.App.3d 546, 550 [matters not ripe for

adjudication should ordinarily be left to a future forum].)

       We believe it is highly unlikely that defendant’s judgment will be final by January

1, 2019, because he would have to exhaust all of his appeal rights by that date, even if we

did not remand the matter for resentencing after January 1, 2019, pursuant to S.B. 1393.

“‘[F]or the purpose of determining the retroactive application of an amendment to a

criminal statute, a judgment is not final until the time for petitioning for a writ of

certiorari in the United States Supreme Court has passed.’” (People v. Vieira (2005) 35

Cal.4th 264, 305-306.) Because it is highly unlikely that defendant’s judgment will in

any event be final by January 1, 2019, we remand the matter to the trial court for

rensentencing pursuant to S.B. 1393, after January 1, 2019.3




       3 Remand for resentencing will not be futile. The record does not indicate that the
court would not have dismissed or stricken defendant’s prior serious felony conviction
for sentencing purposes, had the court had the discretion to do so at the time it originally
sentenced defendant. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)

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                                   IV. DISPOSITION

       The matter is remanded to the trial court with directions to resentence defendant

after January 1, 2019, pursuant to sections 667(a) and 1385(b), as amended by S.B. 1393

effective January 1, 2019. In all other respects, the judgment is affirmed.

       CERTIFIED FOR PUBLICATION


                                                               FIELDS
                                                                                           J.


We concur:

RAMIREZ
                       P. J.

SLOUGH
                          J.




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