Filed 7/11/14 P. v. Higerada CA2/8
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                       DIVISION EIGHT

THE PEOPLE,                                                                   B248100

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. KA097433)
          v.

JORGE LUIS HIGERADA,

          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County.
George Genesta, Judge. Affirmed.

          Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and
Appellant.

          Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


                                             __________________________
       Jorge Luis Higerada appeals from the judgment entered after he was convicted of
grand theft, contending that the trial court erred by allowing his parole officer to testify at
trial that Higerada appeared in a video recording of the incident. Although we conclude
that the trial court erred, we hold that the error was harmless and therefore affirm the
judgment.

                          FACTS AND PROCEDURAL HISTORY

       At around 1:00 p.m. on March 19, 2012, Jorge Luis Higerada entered the South El
Monte branch of Bank of the West, approached teller Marco Zubia, and mumbled
something indecipherable. When Zubia asked, “Excuse me?” Higerada lifted his shirt,
put his hand near the waistband, and said, “Give me all the money. Give me the money.”
Higerada’s voice was “low . . . and serious.” Although Zubia did not see a weapon, he
was afraid that Higerada was armed and handed over all the money in his drawer,
including a stack of $20 bills that concealed an explosive dye pack. Higerada inspected
that stack and handed it back to Zubia, stating, “I don’t want the dye pack.” Higerada
took the loose bills, amounting to more than $2,000, and fled. Elvira Rodriguez, the
bank’s assistant manager, witnessed this exchange and alerted manager Raquel Alvarado,
who tripped the bank’s alarm.
       Higerada was on parole at the time and his parole officer – Arnold Valdez –
contacted the F.B.I. to identify Higerada after coming across a photo of the incident that
the F.B.I. had circulated. Based on Valdez’s information, an F.B.I. agent showed Zubia,
Rodriguez, and Alvarado a six-pack photo lineup that included Higerada’s photo. All
three identified Higerada as the perpetrator.
       Higerada was charged with robbery, along with allegations that he had numerous
prior convictions under the Three Strikes law and for sentence enhancement purposes. In
addition to the three bank employees, Valdez testified about having identified Higerada,
but was identified as a law enforcement officer who supervised him. The jury also saw
the bank’s surveillance video recording, and Higerada admitted that he was the person
depicted in that video.

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       Higerada testified that he had been drinking heavily for five straight days and had
finished off a 40-ounce bottle of beer in the hours leading up the incident. According to
Higerada, he ended up in the shopping district to panhandle. After panhandling without
success in the nearby area, Higerada claimed he entered the bank to ask for money.
However, Higerada said, he was so drunk that he did not see the bank’s signs or ATM
and believed he was entering some sort of agency, not a bank.
       As best he could recall, Higerada walked up to the counter and said, “Can you
give me some money?” or “Give me some money.” Higerada denied lifting his shirt or
reaching toward his waistband and believed that Zubia might have seen his crooked and
“fused” left index finger and believed it indicated he was reaching for something.
       When Zubia placed the loose bills and the stack of $20 bills on the counter,
Higerada returned the stack and said, “I don’t need that much. Take that back.”
Higerada testified that he did not know what a dye pack looked like, did not inspect the
stack of bills to look for one, and did not say that he did not want the dye pack. Higerada
began to count the money after leaving the bank and panicked and ran when he realized
how much he had been given. He did not threaten or intend to threaten the teller.
       The jury acquitted Higerada of robbery but convicted him of the lesser included
offense of grand theft. Higerada contends the trial court erred by allowing Parole Officer
Valdez to testify that he identified Higerada from the F.B.I. photo because the testimony
was irrelevant, more prejudicial than probative (Evid. Code, § 352), and violated his
constitutional due process rights.

                                      DISCUSSION

1.     Facts Leading to the Admission of Valdez’s Testimony

       Higerada represented himself during the early stages of the proceedings, and
during a November 2012 hearing where plea offers were discussed, Higerada said that
based on his legal research concerning the bank’s video surveillance footage he was
“going to admit I am the person in the video, but I never robbed. I never committed a


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robbery.” At a February 27, 2013 hearing, where Higerada was represented by counsel,
the prosecution brought a motion asking the court to allow evidence of that in-court
admission. The trial court granted that motion, but said the jury would also get to hear
Higerada’s statements that he had not committed a robbery.
       The following day defense counsel moved to exclude Valdez’s testimony, arguing
that the previous day’s ruling that allowed evidence of Higerada’s admission that he was
shown in the surveillance video effectively eliminated the issue of identity from the case.
Defense counsel said identity was no longer an issue and that she would concede the
issue “at this point.” The prosecutor said she was no longer sure she would introduce
Higerada’s statement, at least in part because the jury would also hear Higerada’s
statement that he did not commit a robbery. The prosecutor noted that she had alternative
identification evidence available.
       The trial court said it would allow Valdez to testify that he identified Higerada
from the F.B.I. photo. It also ruled that Valdez had to identify himself as a law
enforcement officer with the State of California who supervised Higerada, not as his
parole officer. The court also told counsel: “Let’s see how this plays out. Don’t mention
this person, because it may not be an issue of your concern. But if you insist on it, we
will address it at that time.”
       The prosecution called Valdez as a witness after the three bank employees
testified. No objections were raised and Valdez went on to testify as outlined above. The
trial court instructed the jury that it could use Valdez’s statements about supervising
Higerada only to explain his familiarity with Higerada and that it could not speculate as
to why Higerada was being supervised or let that fact influence its deliberations. Soon
after, however, the trial court on its own motion reversed its previous ruling that the
prosecution could introduce evidence of Higerada’s in-court admission that he was the
person shown in the bank’s surveillance video. The trial court believed the evidence
would be more prejudicial than probative in light of the various witnesses who had
already identified Higerada, especially because Higerada made the statements during a
discussion about plea offers at a time when he was representing himself. If Higerada

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testified and denied that he was the perpetrator, than his statement could come in as
rebuttal evidence, the trial court ruled.

2.     Valdez’s Testimony Was Inadmissible

       Higerada contends that once he conceded he was the person shown in the F.B.I.
photo and surveillance video the trial court erred by admitting Valdez’s identification
testimony. When a defendant concedes the issue of his identity but contends instead that
a crime did not occur, the issue of the perpetrator’s identity is not at issue. (People v.
Pitts (1990) 223 Cal.App.3d 606, 833-834; see People v. Daniels (1991) 52 Cal.3d 815,
858 [identity evidence offered by prosecution relevant because defendant had not
conceded the issue]; People v. Tassell (1984) 36 Cal.3d 77, 88-89, overruled on another
ground in People v. Ewoldt (1994) 7 Cal.4th 380, 401-402; People v. Brown (1993)
17 Cal.App.4th 1389, 1396.) We review the trial court’s ruling under the abuse of
discretion standard. (People v. Cowan (2010) 50 Cal.4th 401, 482.)
       Respondent contends the testimony was relevant for three reasons: (1) Valdez
knew Higerada, making his identification the strongest evidence; (2) Higerada did not
concede the issue; and (3) the basis of Higerada’s argument – the trial court’s decision to
admit his in-court admission that he was depicted in the video – evaporated because the
trial court reversed its ruling.
       We understand Higerada’s concerns about the relevancy of Valdez’s testimony
(see People v. Xiong (2013) 215 Cal.App.4th 1259, 1275 [evidence of how a suspect
came to the attention of the police as a possible suspect is irrelevant unless it provides
independent evidence of guilt]), but assume for our purposes that the evidence was
relevant because at least in the abstract Valdez’s identification was of a different nature
than the eyewitness identification. Our primary concern is whether the evidence should
have been excluded because it was more prejudicial than probative. (Evid. Code, § 352.)
       The trial court shared this concern because it took steps to sanitize Valdez’s
testimony by identifying him as something other than Higerada’s parole officer.
Higerada contends that the trial court’s alternative – having Valdez identify himself as a

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law enforcement officer who supervised Higerada – was still prejudicial. He also
contends the evidence had little probative value and was merely cumulative of the
overwhelming evidence that he was the person who took money from the bank.
       Respondent argues the evidence was probative because Valdez’s statement that he
supervised Higerada laid the foundation for his identification testimony and that any
prejudicial effect was cured by the trial court’s instruction concerning the limited use of
that evidence.
       Although the trial court took steps to sanitize Valdez’s testimony, those steps did
not go far enough. Even with the trial court’s admonition that the jury should not
speculate about Valdez’s connection to Higerada, the evidence likely invited the jury to
speculate as to why a law enforcement officer would be supervising someone unless he
was on parole or probation. We therefore conclude that the trial court’s effort to sanitize
the evidence did not effectively remove the potential risk for undue prejudice or jury
confusion.

3.     The Error Was Harmless

       Even though error occurred, we believe the error was harmless because a different
result was not reasonably probable absent that error. (People v. Jablonski (2006)
37 Cal.4th 774, 823 [applying state law standard under People v. Watson (1956)
46 Cal.2d 818, 836].) First, Higerada testified that he had three prior convictions
involving crimes of moral turpitude, meaning that the jury learned from admissible
evidence that Higerada had a criminal record. Even if the jury surmised that Valdez had
been Higerada’s parole officer, that fact did not pile on any additional stigma to what the
jury heard from Higerada himself. Second, three eyewitnesses and the surveillance video
showed Higerada inside the bank. Third, Higerada admitted that he entered the bank and
took the money. His defense consisted of the improbable explanation that he was so
blind drunk he did not know he was inside a bank and that he did not have the intent to
steal, only to beg for a handout. The jury discredited that explanation, but believed


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Higerada’s testimony that he did not use force or fear, thereby convicting him of only the
lesser included offense of grand theft. We therefore conclude that the error was harmless.
       Higerada also raises a constitutional due process argument about Valdez’s
testimony, but the state law harmless standard error still applies because at bottom
Higerada has raised an issue concerning the erroneous application of the normal rules of
evidence. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) Even if we applied the higher
federal standard – that the error must be harmless beyond a reasonable doubt (Chapman
v. California (1967) 386 U.S. 18, 24) – we would reach the same result. (People v.
Jablonski, supra, 37 Cal.4th at p. 823.)

                                           DISPOSITION

       The judgment is affirmed.




                                                 RUBIN, ACTING P. J.
WE CONCUR:



              FLIER, J.



              GRIMES, J.




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