Filed 7/15/13 P. v. Moreno CA2/8
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SECOND APPELLATE DISTRICT

                                                   DIVISION EIGHT


THE PEOPLE,                                                          B241046

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA 385729)
         v.

SAMUEL MORENO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Kathleen A. Kennedy, Judge. Affirmed with directions.


         Kevin D. Sheehy, 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, Zee Rodriguez and Connie H. Kan,
Deputy Attorneys General, for Plaintiff and Respondent.


                                                         ******
       Appellant Samuel Moreno challenges his conviction and sentence for willful,
deliberate, and premeditated attempted murder and attempted second degree robbery with
enhancements on two grounds: (1) the trial court improperly excluded evidence that the
victim, who was the only eyewitness to the incident, had a prior felony conviction for sale of
cocaine and had previously given false names to police; and (2) the trial court improperly
refused to give a “pinpoint” jury instruction regarding law enforcement‟s improper
influence on the victim during a photo identification procedure. Appellant also contends
that the trial court‟s sentencing minute order incorrectly reflects his sentence on count 2 as
orally pronounced by the court. On this point, the attorney general agrees.
       We affirm appellant‟s conviction. We direct the trial court to correct the sentencing
minute order to reflect the court‟s oral pronouncement of appellant‟s sentence.
                             PROCEDURAL BACKGROUND
       On June 15, 2011, appellant was charged with two counts of attempted willful,
deliberate, and premeditated murder and attempted second degree robbery, along with
several enhancement allegations for gang association, firearm use, and infliction of great
bodily injury. After the trial court struck one firearm allegation under Penal Code section
12022.5, subdivision (a)1 during trial, the jury found appellant guilty of all charges and
found all allegations true. Appellant was sentenced to a total of 77 years to life in prison as
follows: 15 years to life for count 1, plus 25 years to life for the firearm enhancement; and
two years for count 2, plus 10 years for the gang enhancement and 25 years to life for the
firearm enhancement. Appellant timely appealed.
                                 STATEMENT OF FACTS
1. Prosecution Case
       Around 7:30 or 8:00 p.m. on September 1, 2009, Oscar Paniagua, a taxicab driver,
picked up appellant and another passenger at 8th Street and New Hampshire Avenue in Los
Angeles. Appellant sat in the back seat and the other individual sat in front next to
Paniagua. Appellant initially told Paniagua to drive to the intersection of Clinton Street and

1      Undesignated statutory citations are to the Penal Code.


                                               2
Ardmore Avenue, but he changed his mind and told Paniagua to take them to Clinton Street
and Hobart Boulevard. When Paniagua stopped there, one of the passengers asked how
much the fare cost and Paniagua told him $8. At that time, Paniagua took off his seatbelt
because it was “really dark” and “pretty desolate,” and he felt “unsure” about the passengers
because he saw “they were kind of nervous.”
       Appellant gave Paniagua a $10 bill and Paniagua pulled out money to make change.
As the front passenger exited the taxi, Paniagua turned around and saw appellant remove a
revolver from a computer bag; he said to Paniagua, “Give it to me.” Paniagua “just went
for” the gun to try to take it away from appellant. During the minute-long struggle that
ensued, Paniagua said, “Let go of it; give it to me,” and appellant responded two or three
times that “he couldn‟t give [Paniagua] the gun” and yelled to the other passenger outside
the taxi to “[k]nife” and “[b]ite” Paniagua. Appellant bit Paniagua‟s arms and the other
passenger bit Paniagua‟s hand, and Paniagua bit appellant on the left side of his back.
Paniagua was able to see appellant‟s face in the interior dome light of the taxi during the
struggle.
       As Paniagua struggled with appellant, the passenger outside the taxi kicked him in
the face several times, causing him to become dizzy. At that point, Paniagua decided to
leave the scene; as he drove away, he heard two or three shots and felt something “hot” on
the back of his shoulder. He drove about four blocks and sought help, clipping another car
on the way, and eventually stopping at Kingsley and Rosewood Drives. Following an
emergency call, Los Angeles Police Department (LAPD) Officer Luis Interiano and his
partner found Paniagua with blood on his mouth and back, a contusion on his face, a
“completely bloodshot red” eye, bite marks on his arms, and a gunshot wound in his back.
       At the hospital approximately 45 minutes to an hour after the incident, Paniagua
described the shooter to Officer Interiano and LAPD Detective James Bland as a “male
Hispanic,” about five feet six or seven inches tall, “a bit chubby” at about 150 to 170
pounds; he also said the shooter had short hair, facial acne, a scar on his lip, and a baseball
cap, although Detective Bland testified that Paniagua did not say appellant wore a hat.
However, when he was booked a month later, appellant weighed 140 pounds, was five feet


                                                3
two inches tall, and had an “oval shape” on the left side of his back that looked like a bite
mark.
        Shortly after Paniagua was taken to the hospital, another LAPD officer searched his
taxi. The officer found $14 in cash, a bluetooth headset, a hat, and a brown shirt, as well as
a camcorder and a disk for the camcorder on the floor of the backseat, which did not belong
to Paniagua. There were also bullet holes in the driver‟s headrest and the passenger-side
dashboard; a detective later recovered the bullet in the dashboard. At the intersection of
Harvard Boulevard and Clinton Street, the officer recovered collision debris and a blue
Rams hat.
        LAPD Officer Shane Bua watched the video from the camcorder several times,
which showed eight individuals -- including appellant -- rapping in Spanish and drinking
beer. Officer Bua was able to identify the location of an outdoor scene in the video, and on
September 19, 2009, he and his partner visited that area. They encountered two intoxicated
individuals: appellant and an individual named “Raton” and known to be a Mara
Salvatrucha gang member. They completed field identification cards for both individuals,
took appellant‟s photograph, and drove appellant home a few blocks away on North
Kingsley Drive.
        Detective Bland included appellant‟s photograph in a six-pack photographic lineup
(six-pack photo lineup) that he showed to Paniagua. Before Paniagua examined the photos,
Detective Bland admonished him in writing that, among other points, the six-pack photo
lineup may or may not contain a picture of the person who committed the crime being
investigated, and Paniagua indicated that he understood. Paniagua identified appellant as
the shooter and wrote the statement: “Number four resembles him more. His weight, his
eyes, his ears, his mouth, his face. He is the one who shot me. He had the gun, and he was
sitting in the back seat.” Detective Bland then showed him parts of the video that had been
recovered from his taxi. He had Paniagua “look at individuals” and “asked him, anybody
else involved, or is there anyone here involved in this video?” Paniagua again identified
appellant as the “same one who had shot me.” Detective Bland later created two other six-
pack photo lineups excluding appellant but including two individuals whose fingerprints


                                               4
were found inside Paniagua‟s vehicle after the shooting; Paniagua did not recognize any of
those individuals.
       No fingerprints were lifted from the camcorder. DNA samples were taken from the
camcorder and the Rams hat, but appellant was excluded as a donor. Eighteen latent
fingerprints were found on the interior and exterior of Paniagua‟s taxi and three individuals
were verified as matches; none matched appellant or the name “Oscar Paniagua.” Two of
the three individuals were included in the two subsequent six-pack photo lineups shown to
Paniagua. The third individual was determined to be Paniagua, although his fingerprints
were associated with the names “Carlos Solis,” “Golon Golon,” “Carlos Angel Solis,” and
“Sergio Antonio Lopez.” Detective Bland determined Paniagua was, in fact, Sergio
Antonio Lopez. At trial, Paniagua admitted on cross-examination that he did not have a
driver‟s license on the night of the incident.
       Detective Bland obtained a warrant and searched appellant‟s residence. Officers
seized two cell phones from under appellant‟s bed in the living area; one contained a picture
with the word “Salvatrucha,” and the other contained photos of appellant and several photos
of a “blue steel or darkened-color revolver with wooden grips” or “revolver-type handgun.”
Officers also seized eight photographs of appellant and others “manipulating their hands.”
       On October 8, 2009, Detective Bland and LAPD Detective Humberto Tovar arrested
appellant at the construction site where he worked. Detective Bland recovered a cell phone
from him and found a text message on it in Spanish to “Droopy” stating: “It‟s real hot with
the cops last night. They stopped me again. Later. Take care of yourself.” The detectives
did not, however, investigate when the message was sent, who “Droopy” was, or who was
the subscriber of the phone number connected to the cell phone.
       At trial, Paniagua was asked if he saw in the courtroom one of the individuals he
picked up in the taxi that night, and he testified, “I think so” and “I think I did” see him in
the courtroom. He was then asked, “As you look at the defendant here in court today, are
you certain or not that that is the person who you picked up?”; he replied, “Yes, it is the
same person.” He also testified on direct examination that, at the preliminary hearing in
2009, he had been shown a photograph of someone other than appellant (marked at trial as


                                                 5
People‟s Exhibit 3), and he had been asked if the person in the photo looked like appellant.
He responded that “it looked like [appellant] but it wasn‟t him.” He testified that he was
“certain that the person who actually shot [him] is the person who is in court today.”
       Later at trial Exhibit 3 was identified as depicting appellant‟s cousin Alejandro
Rivas. Detective Tovar, who arrested appellant with Detective Bland, had heard the name
“Alex Rivas,” but he was never assigned to locate him. Nor were any checks for latent
fingerprints run against records for “Alejandro Rivas” or “Amilcar Alejandro Rivas.”
       The People called two expert witnesses at trial, including forensic dentist Gregory
Golden.2 Dr. Golden examined the bite mark on Paniagua‟s arm. He explained that there
are four levels of certainty as to whether a bite mark matches someone as the biter: (1) a
reasonable medical certainty that the person is a biter; (2) the person is the probable biter;
(3) the person cannot be ruled out as the biter; and (4) there is insufficient evidence to
determine whether the person is the biter. Comparing a life-sized photograph of Paniagua‟s
bite mark to an overlay of appellant‟s teeth,3 Dr. Golden found similarities, so he placed
appellant in category three; that is, he could not exclude appellant as the biter, but he could
not say that appellant was either a certain or probable biter.
2. Defense Case
       Appellant did not testify but he called several witnesses in his defense. Appellant‟s
sister Nelly Moreno and her husband Alfredo Badio, whom appellant lived with, testified
that they each returned home from work around 6:00 or 6:30 p.m. on September 1, 2009, to
find appellant already home, lying down and wearing his work clothes and shoes;4 he never
left the apartment for the rest of the night. After the three of them prepared and ate dinner,


2       The other expert was gang enforcement Police Officer Robert Chiu, who ultimately
testified that the shooting and attempted robbery were for the benefit of the gang. Appellant
has not challenged the gang allegations, so we need not set forth the details of his testimony.
3     Dr. Golden scaled the photograph of Paniagua‟s bite mark using a piece of tubing
appearing in the photograph as a reference point for the life-size dimensions depicted.
4     Moreno testified that he was wearing “tennies,” while Badio testified that he was
wearing “boots” and “not tennis shoes.”


                                                6
they heard an ambulance outside around 8:00 or 8:30 p.m. They went onto the balcony of
their apartment and saw Paniagua was injured and was being taken out of his taxi. Both
Moreno and Badio testified that their nextdoor neighbors also came out, and that they spoke
with the “lady from next door,” Linda Sierra, and her husband. But Sierra testified that
when she came out onto her balcony, she was alone and did not see or talk to anyone on
Moreno and Badio‟s balcony while she was out there.
       Moreno testified that she has a cousin named Amilcar Alejandro Rivas, who was
pictured in People‟s Exhibit 3 and “perhaps” six feet tall and “heavy, perhaps 145 pounds.”
She saw him about three days after seeing Paniagua being taken from his taxi; she saw on
his left shoulder blade an injury that looked like he “had injured himself like with a stick or
something.” When police searched her apartment, she told the detectives that a camcorder
belonging to Rivas was missing.5 Moreno also testified that appellant had once used the
name “Amilcar” when being arrested. She testified that she had two prior theft convictions,
one in 2004 and one in 2007.
       Badio also identified Rivas in People‟s Exhibit 3 and testified that he knew him as
“Tito.” He said Rivas was “just about the same height” as appellant, or “maybe a little bit
shorter,” but he was “a little heavier” at “around 150 or 155 pounds” and with a “wider”
face. Before the incident, Badio had seen a camcorder inside his apartment belonging to
Rivas. Badio never saw appellant pick it up, but he also said he was not home often.
       Appellant‟s former girlfriend at the time of the shooting, Johana Bonilla, testified that
during sexual intercourse she would give appellant “bites” or “hickies” on his neck,
shoulders, and back because they gave him pleasure, and that the photographed bite on



5       Detective Tovar testified that Moreno told detectives that the camcorder was
connected to her cousin “Eric Gonzalez.” He also testified that during the search detectives
found a traffic citation bearing the name “Eric Gonzalez” near appellant‟s bed, but did not
recall showing it to Moreno at that time. During a subsequent telephone call, Moreno told
Detective Tovar that appellant‟s cousin‟s name is “Eric Gonzalez” and “Tito.” Moreno did
not recall telling detectives that the camcorder belonged to Eric Gonzalez and denied being
shown a traffic citation with the name “Eric Gonzalez” or “Eric Moreno Gonzalez” on it.


                                               7
appellant‟s back was due to her. Appellant‟s work supervisor, Carlos Caceres, testified that
he sometimes saw appellant with his shirt off and noticed appellant had hickies.
       Caceres also testified that it was “fair to say that [appellant] worked on September
1st,” although he was not “100 percent sure.” Another of appellant‟s coworkers, Mauricio
Bonilla, testified that he would drive appellant home from work in September 2009, but he
could not specifically remember dropping him off on September 1.
       Otto Paz, an eyewitness who lived across the street from appellant‟s apartment,
testified he had stepped outside at some point before Paniagua stopped his vehicle in front
of appellant‟s apartment. At the time it was “dark” but not “real late,” and he saw appellant
out on his balcony 15-18 feet away “relaxing.” He went back inside and heard someone
asking for help, so his daughter called 911. Paz noticed the “woman that lives next to”
appellant “came out in a -- like a nightgown, and she stayed up there on the balcony just
watching.” After she was standing on the balcony, appellant “came out, he wasn‟t there for
a long time, and then went in,” and Paz did not remember seeing anyone else. Paz did not
see Sierra‟s husband come out onto the balcony that night. Neither he nor his daughter were
ever interviewed by police about the incident.6
       Forensic psychologist Dr. Mitchell Eisen, an expert on eyewitness memory and
suggestibility, testified that a witness‟s identification of a suspect in a six-pack photo lineup
could possibly be influenced by showing him or her a video immediately afterward with the
suspect just identified. He opined that giving an admonishment can avoid a witness feeling
pressure to select someone from the lineup by assuming that the perpetrator appears there.
The lineup should also be administered “double-blind,” that is, without either the witness or
the person administrating the lineup knowing whether the suspect‟s photo is included.
       Dr. Eisen testified that descriptions of events right after a person experiences them
tend to be more accurate than later descriptions; however, in a traumatic event, the trauma



6     Officer Interiano testified that he did not see Paz at the scene and did not know
whether officers interviewed Paz or any of the other 911 callers from that night. Detective
Tovar did not follow up with any 911 callers and did not know if anyone else had.


                                                8
creates a “massive distraction” that can limit the information a person can process during the
experience. When a weapon is involved in a traumatic event, the weapon is often the focal
point of the victim‟s attention, which can prevent the witness from accurately recalling the
details of the perpetrator‟s face. He also testified that once someone has identified a
suspect, whether correct or not, he or she will strive to make consistent future
identifications, and a high level of confidence in an identification does not necessarily mean
it is correct.
                                         DISCUSSION
1. Exclusion of Paniagua’s Prior Misconduct
        Appellant argues the court violated his federal and state constitutional rights to
confrontation, to due process, and to presenting a meaningful defense by excluding evidence
of Paniagua‟s prior conviction for selling cocaine and by prohibiting defense counsel from
questioning Paniagua on his prior use of other names with police.
        A criminal defendant‟s constitutional right to a fair trial includes the right to confront
the prosecution‟s witnesses. (People v. Ardoin (2011) 196 Cal.App.4th 102, 118 (Ardoin).)7
This right “„includes the right to cross-examine adverse witnesses on matters reflecting on
their credibility.‟” (Ibid., quoting People v. Szadziewicz (2008) 161 Cal.App.4th 823, 841-
842.) However, not every restriction on cross-examination violates the defendant‟s rights,
which “„“may, in appropriate cases, bow to accommodate other legitimate interests in the
criminal trial process.” [Citation.]‟” (Ibid.) “„[A] trial court may restrict cross-examination
on the basis of the well-established principles of Evidence Code section 352,[8] i.e.,
probative value versus undue prejudice. [Citation.]‟” (Id. at p. 119.) There is no violation




7     The California Constitution‟s guarantees to criminal defendants are coextensive with
the United States Constitution. (Cal. Const., art. I, § 24.)
8        Evidence Code section 352 states, “The court in its discretion may exclude evidence
if its probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”


                                                9
“„unless the prohibited cross-examination might reasonably have produced a significantly
different impression of credibility.‟” (Ibid.)
       We review the trial court‟s exclusion of evidence under Evidence Code section 352
for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655 (Clair); People v.
Robinson (2011) 199 Cal.App.4th 707, 716 (Robinson).) The trial court‟s decision “„will
not be disturbed except on a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.‟”
(People v. Brown (2003) 31 Cal.4th 518, 354.)
A. Factual Background
       Defense counsel requested that the trial court admit evidence that Paniagua had a
1997 felony conviction for violating Health and Safety Code section 11351.5 (possession of
cocaine base for sale). The court was “disinclined to allow it as an impeachment offense in
this case” because it was 15 years old at the time of trial and “[t]here is nothing else on
[Paniagua‟s] rap sheet that affects moral turpitude.”9
       During Paniagua‟s cross-examination, defense counsel asked if “Oscar Paniagua”
was his “true name”; he replied, “Yes.” Defense counsel then asked whether he had always
gone by that name. The prosecutor objected on relevance grounds and the objection was
sustained. Defense counsel next asked, “Have you ever lied to the cops about your name?”;
the prosecutor again objected, and the objection was again sustained. Later, Detective
Bland testified that a set of fingerprints from Paniagua‟s taxi was associated with the name
“Sergio Antonio Lopez,” who turned out to be Paniagua.
       After Paniagua testified, appellant moved in limine to admit evidence that Paniagua
had given a false name to police during his 1997 felony conviction and had told police that
he had used several fake names in the past. The trial court denied the motion, explaining
that it is “very common among Hispanics, especially those that may not be in this country

9       The record is inconsistent whether Paniagua suffered the conviction in 1996 or 1997.
The trial court calculated 15 years between the 1996 date and December 2011, when the
trial began. The parties treat the conviction as occurring in 1997, and so shall we, although
the one-year discrepancy is immaterial to our resolution of the issue.


                                                 10
with papers, that they have many -- or different identities that are utilized.” The court noted
that the incident “was so long ago” and that the evidence was “very marginally indicative of
moral turpitude unless [defense counsel] can establish that there was some particular reason
why he did it.” Further, because appellant was not convicted of that offense, appellant
“would have to be able to prove that with independent evidence” by having “under
subpoena the officer to whom he supposedly gave the false name.” The trial court
considered the evidence of “negligible evidentiary value” and believed that defense counsel
did not have a “good-faith offer of proof that you have these people under subpoena, that
you could prove this act up,” even though defense counsel claimed there were “admissions”
by Paniagua that “he used fake names more than once, and one of them was for the drug
arrest.”
       After the jury returned the verdicts, appellant moved for a new trial, arguing that the
trial court‟s exclusion of Paniagua‟s prior conviction and preclusion of cross-examination
on Paniagua‟s prior use of false names violated his right to a fair trial, confrontation, and
due process. The motion was denied.
B. Legal Standard
       A witness‟s prior felony conviction for possession of controlled substances for sale
involves moral turpitude and is therefore admissible for impeachment, subject to Evidence
Code section 352. (Robinson, supra, 199 Cal.App.4th at p. 712; People v. Harris (2005) 37
Cal.4th 310, 337; People v. Castro (1985) 38 Cal.3d 301, 317.) In applying Evidence Code
section 352 to a prior conviction of a witness who is not the defendant, the trial court is
mainly guided by two nonexclusive factors: “whether the conviction (1) reflects on honesty
and (2) is near in time.” (Clair, supra, 2 Cal.4th at p. 654.) Even in the absence of a felony
conviction, prior acts involving moral turpitude are admissible for impeachment purposes,
subject again to Evidence Code section 352. (Harris, supra, at p. 337; People v. Wheeler
(1992) 4 Cal.4th 284, 295-296.) In order to prove prior misconduct for impeachment
purposes, “a witness could admit the conduct or other witnesses could be called to describe
the conduct.” (People v. Steele (2000) 83 Cal.App.4th 212, 222.)



                                               11
C. Analysis
       While the exclusion of Paniagua‟s 1997 conviction was within the trial court‟s
discretion under Clair, we find that the court abused its discretion in precluding defense
counsel from cross-examining Paniagua on his use of a false name in connection with that
conviction and on subsequent uses of false names with police officers. The evidence was
unquestionably probative of Paniagua‟s credibility -- if he lied to police about his name on
prior occasions, that certainly reflected on his truthfulness as a witness. The record not only
reflects that he likely used a false name in connection with his 1997 conviction, but counsel
also represented that Paniagua admitted using false names on other occasions. Yet, the
court precluded counsel from developing that point, speculating that counsel did not have a
“good-faith offer of proof” that police officers were needed as witnesses to testify that
Paniagua had given false names to them. We find this comment difficult to understand,
given that counsel represented that Paniagua had admitted he had done so, and Detective
Bland testified that Paniagua‟s fingerprints were associated with at least one other name
(and, based on the fingerprint specialist‟s testimony, likely more). Had Paniagua taken the
stand and denied his prior use of other names, counsel had evidence to rebut that without
calling the officers to whom Paniagua had given false names. The court should have
permitted counsel to cross-examine Paniagua on that issue to elicit Paniagua‟s response.
       We are also troubled by the trial court‟s speculation that Paniagua might have used
other names for the stated reason that it was “very common among Hispanics, especially
those that may not be in this country with papers, that they have many -- or different
identities that are utilized.” Nothing in the record suggested Paniagua had, in fact, used
other names because he was Hispanic or that he was an undocumented immigrant.
Evidence Code section 352 grants trial courts broad discretion, and as a reviewing court, we
are reluctant to second-guess those decisions. “This discretion is not, however, unlimited,
especially when its exercise hampers the ability of the defense to present evidence. While a
trial judge has broad discretion to control the ultimate scope of cross-examination, wide
latitude should be given to cross-examination designed to test the credibility of a
prosecution witness in a criminal case.” (People v. Cooper (1991) 53 Cal.3d 771, 816.)


                                              12
This is one of the few instances in which the court exceeded the boundaries of its discretion.
Broad assumptions like those discussed above, lacking any foundation in the evidence,
should have no place in the court‟s weighing process.
       Nonetheless, appellant suffered no prejudice because we do not believe this evidence
“„might reasonably have produced a significantly different impression of [Paniagua‟s]
credibility.‟” (Ardoin, supra, 196 Cal.App.4th at p. 119.) Even though Paniagua testified
that “Oscar Paniagua” was his true name, Detective Bland testified that Paniagua was
associated with the name Sergio Antonio Lopez. A forensic print specialist also testified
that Paniagua‟s fingerprints were associated with different names. Therefore, the jury could
have inferred that Paniagua had given false names to law enforcement in the past and could
have questioned his veracity on that basis. Moreover, the jury was told Paniagua did not
have a driver‟s license on the night of the shooting, which would have called into question
his honesty and veracity. These facts were at least as probative of Paniagua‟s veracity as his
direct testimony about using other names. (See 196 Cal.App.4th at p. 122 [finding
cumulative impeachment evidence would not have produced a different impression of
witness‟s credibility].) Appellant has failed to demonstrate that reversal is warranted.
2. Refusal to Give “Pinpoint” Jury Instruction
       Appellant contends that the trial court violated his rights to due process and to
providing a defense by refusing to give a “pinpoint” instruction as part of CALCRIM No.
315, which he claims prevented the jury from focusing on whether Detective Bland tainted
Paniagua‟s identification of appellant. We find no error, and even if there was error, it was
harmless.
       The standard version of CALCRIM No. 315 lists 15 questions that jurors can
consider in evaluating the truthfulness and accuracy of eyewitness identification testimony,
including the last question, “Were there any other circumstances affecting the witness‟s
ability to make an accurate identification?”10 Defense counsel requested that the court



10     The court‟s full instruction stated: “You have heard eyewitness testimony
identifying the defendant. As with any other witness, you must decide whether an

                                              13
include in this instruction a “pinpoint” instruction regarding influence during the
identification procedure. Defense counsel initially requested in a pretrial brief that the
following sentence be added: “Was the witness improperly influenced when he made an
identification[?]” The trial court rejected the request, reasoning, “I think that the language
in the instruction says, „Were there any other circumstances affecting the witness‟s ability to
make an accurate identification‟ covers that particular area. [¶] And even in what you say
here, „Was the witness improperly influenced?‟ He doesn‟t even have to be improperly
influenced. [¶] It could be nothing really even improper that was done but somehow
influenced the witness to make an identification, so I‟m going to deny your request. I think
it‟s covered in that sentence that I just read, and you can argue it.” Defense counsel offered
to amend the modification to state, “Was the witness influenced by law enforcement when
he made an identification?” The court again rejected the request, noting, “I‟m going to
allow you to argue it, and I think it‟s covered in that one sentence that I indicated.” Defense
counsel raised this contention again in appellant‟s unsuccessful motion for a new trial.




eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony,
consider the following questions: [¶] Did the witness know or have contact with the
defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What
were the circumstances affecting the witness‟s ability to observe, such as lighting, weather
conditions, obstructions, distance, and duration of observation? [¶] How closely was the
witness paying attention? [¶] Was the witness under stress when he or she made the
observation? [¶] Did the witness give a description and how does that description compare
to the defendant? [¶] How much time passed between the event and the time when the
witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a
group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever
change his or her mind about the identification? [¶] How certain was the witness when he
or she made an identification? [¶] Are the witness and the defendant of different races? [¶]
Was the witness able to identify other participants in the crime? [¶] Was the witness about
to identify the defendant in a photographic or physical lineup? [¶] Were there any other
circumstances affecting the witness‟s ability to make an accurate identification? [¶] 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
       We find no error in the trial court‟s refusal to give appellant‟s requested instruction.
“When a legally correct instruction is requested . . . it should be given „if it is supported by
substantial evidence, that is, evidence sufficient to deserve jury consideration.‟” (People v.
Wilkins (2013) 56 Cal.4th 333, 347.) Here, no such evidence existed. The only evidence
supporting appellant‟s theory that Detective Bland improperly influenced Paniagua‟s
identification by showing him the video after the six-pack photo lineup was testimony from
appellant‟s eyewitness identification expert that influence under these circumstances was
“possible.” That testimony was insufficient to justify adding appellant‟s requested
instruction to the factors listed in CALCRIM No. 315.
       Even if the trial court erred in rejecting appellant‟s proposed modification to
CALCRIM No. 315, any error was harmless under both Chapman v. California (1967) 386
U.S. 18, 24 (harmless beyond a reasonable doubt) and People v. Watson (1956) 46 Cal.2d
818, 836 (reasonable probability of a more favorable outcome). Nothing in CALCRIM No.
315 or any other instruction precluded appellant from offering evidence or arguments to
support his theory that Paniagua‟s identification was tainted by his being shown the video so
soon after being shown the six-pack photo lineup. And defense counsel cross-examined
Detective Bland, offered testimony from an eyewitness expert on identifications, and argued
in closing that Detective Bland influenced Paniagua‟s identification by showing him the
video, bringing to the jury‟s attention appellant‟s defense theory.
       Cases have repeatedly held that, under these circumstances, any error in refusing
requested “pinpoint” instructions is harmless. (People v. Gutierrez (2002) 28 Cal.4th 1083,
1144 [finding no prejudice from refusal to give defense pinpoint instruction because other
instructions did not preclude jury from finding for appellant and defense counsel otherwise
“fully explicated” the defense to the jury]; People v. Earp (1999) 20 Cal.4th 826, 887
[finding no prejudice from refusal to give defendant‟s requested instructions because other
instructions were adequate and the jury knew the defense theory from defense counsel‟s
arguments]; People v. Fudge (1994) 7 Cal.4th 1075, 1111 [finding no prejudice from trial
court‟s erroneous refusal to give instruction based on eyewitness identification expert‟s
testimony in part because the court gave other eyewitness testimony instructions and


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defense counsel summarized testimony in closing].) Because appellant fully presented and
the jury was able to fully consider his theory even absent a specific instruction on influence
during the identification process, any error was harmless and does not mandate reversal.
3. Error in Sentencing Minute Order
       The parties agree that appellant‟s sentence on count 2 in the trial court‟s sentencing
minute order did not accurately reflect the court‟s oral pronouncement. For count 2, the
court orally imposed a sentence of “two years plus ten years for the gang enhancement, plus
twenty-five years to life for the [section] 12022.53(d) allegation, the discharge causing great
bodily injury.” But the sentencing minute order incorrectly stated that his sentence on count
2 was “12 year[s] determinate and 37 years to life indeterminate.” When an oral
pronouncement of a sentence and a minute order conflict, the oral pronouncement generally
controls. (People v. Gonzalez (2012) 210 Cal.App.4th 724, 744.)
                                           DISPOSITION
       We direct the trial court to correct the sentencing minute order to reflect the court‟s
oral pronouncement of appellant‟s sentence on count 2 as reflected in the reporter‟s
transcript. In all other respects, the judgment is affirmed.




                                                    FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




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