Filed 6/21/13 P. v. Smallwood CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C070806

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F03901)

         v.

DETOURIANTAE KYMONO SMALLWOOD,

                   Defendant and Appellant.




         In December 2011, a jury found defendant Detouriantae Kymono Smallwood
guilty of second degree robbery, unlawfully carrying a loaded firearm in a vehicle,
possessing a short-barreled shotgun, and concealing a short-barreled shotgun in a vehicle.
The jury also found true the enhancement allegation that defendant personally used a
firearm in the commission of the robbery. The court sentenced defendant to a total of 13
years in prison.
         On appeal, defendant claims the judgment must be reversed because the trial court
unconstitutionally limited his cross-examination of Sacramento Police Officer Amy Slay.
He further claims that the court prejudicially erred by failing sua sponte to instruct the
jury on accomplice testimony. We disagree and affirm.


                                                             1
                  FACTUAL AND PROCEDURAL BACKGROUND
       In June 2010, the victim was walking around a Sacramento neighborhood selling
corn out of a cart. A white car drove past her and then stopped. Two people got out of
the car, one from the front passenger seat and one from the rear passenger seat. The
person who exited the front passenger seat walked over to the victim, pulled a wooden-
handled shotgun out from under his sweatshirt, pointed it at her, and demanded money.
This person was later identified as defendant. The second individual walked over and
untied a bag the victim was wearing around her waist (sometimes described as a fanny
pack). The bag was black and contained the victim‟s money and cell phone. The two
men returned to the car and drove away.
       Michael Harris, an eyewitness to the crime, lived across the street from where the
robbery occurred and saw the whole event through his living room window. He saw a
white Nissan Altima drive by about three times. Harris then watched the car stop at the
curb across from his house. A male got out of the passenger‟s side backseat of the car
and stood by the hood. The driver stayed in the car. Another male got out from the front
passenger‟s side of the car, approached the victim, and pointed a shotgun at her. Harris
saw the victim give up her belongings. “The individual [who] had the gun . . . casually
walked back to the car and got in the car and they drove off.” Harris could not see if
anyone else was in the backseat of the car because a blanket covered the rear, driver‟s
side window blocking his view. He immediately called 911 to report the robbery.
       Upon responding to the scene, Sacramento Police Officer Lilia Vasquez spoke
with the victim, and Officer Slay spoke with Harris. According to Officer Vasquez, the
victim described the robber as “a black male, approximately 18 to 20 years old,
approximately six feet tall, weighing possibly more than 200 pounds, wearing a black
hooded sweatshirt with a white T-shirt underneath . . . . [H]e was also wearing glasses.”
At trial, Harris also described the robber as being a black male, around 20 to 21 years old,
6 feet 2 inches or 6 feet 3 inches, weighing between 210 to 240 pounds, having short hair,

                                             2
and wearing a black hooded sweatshirt and glasses. Harris added that the robber had a
design on the back pocket of his jeans.
       After speaking with Officer Slay, Harris drove to Home Depot. As he was on his
way, he saw the same white Nissan Altima from earlier. Harris again called 911 and
reported the car‟s license plate number and that the car was at a FoodMaxx parking lot.
The same two males were in the front seats of the car and the third male was still in the
backseat. In addition, Harris saw two females in the back of the car whom he had not
seen before because of the blanket in the rear, driver‟s side window.
       Sacramento Police Officers Orlando Morales and Michael Pinola were the first to
arrive at the FoodMaxx parking lot; they immediately detained the people in the Nissan
Altima. The person sitting in the driver‟s seat was identified as Timothy Kellogg.
Defendant was sitting in the front passenger seat, and Demarrio Fearington was in the
rear passenger seat. Two females, Bonnie Owens-Pimentel and Ralisha (“Shaniz”)
Powell, were also in the backseat. A surveillance video showed that defendant, Kellogg,
and Fearington entered the FoodMaxx store and stood next to the Coinstar change
machine. The victim‟s fanny pack was also visible in the surveillance video and was
recovered from the top of the Coinstar machine by Officer Pinola later that day.
       After detaining the suspects, Officer Vasquez dialed the victim‟s cell phone.
Upon dialing, she heard and then saw a phone ringing on the back passenger floorboard
of the Nissan Altima. She hung up and dialed the same number again to confirm that the
phone inside the vehicle was the victim‟s. From where she was standing, she could see
that the number on the screen was her number. The victim later confirmed that the phone
found inside the car was hers. Also found in the trunk of the car was a 12-gauge, sawed-
off shotgun wrapped in a blanket.




                                             3
       The victim and Harris were both asked to participate in a field showup in the
FoodMaxx parking lot.1 The victim was with Officer Vasquez and Harris was with
Officer Slay in her car during this process. When an officer escorted defendant in front
of the police car where the victim was, according to Officer Vasquez, the victim told her
in Spanish that he “looked like the person [who] had the gun that robbed her.” The victim
was unable to identify Kellogg or Fearington. Harris also identified defendant as the
person with the gun and said that he recognized defendant‟s hair and face and the
rainbow design on the back of his jeans. Harris was also able to identify Kellogg as the
driver and Fearington as the rear passenger who had gotten out and stood by the side of
the car. Harris testified that he was “beyond confident” of the identifications he made
that day. He was also able to identify defendant at trial. In addition, both Harris and the
victim identified the Nissan Altima as the car used in the robbery and said that the gun
found in the car looked like the gun used in the robbery.
       Defendant‟s ex-girlfriend, Owens-Pimentel, testified on behalf of the prosecution
in exchange for a grant of immunity.2 She acknowledged that in June 2010, she owned a
white Nissan Altima matching the license plate number of the vehicle used during the
robbery. However, during her initial statements to Officer Morales, she said the three
males left her at Shaniz‟s house while defendant borrowed the car to get money. Then



1      During a field showup, the police take a witness or witnesses to a location where
they are holding a possible suspect. The witnesses are told that the person they view may
or may not be the person they observed commit the crime and that they are under no
obligation to identify the person. The police admonish the witnesses to keep an open
mind during the process and to explain to the officer why the person is or is not the
suspect. At a field showup, the police show the suspects one at a time.
2      Owens-Pimentel was 18 years old and defendant was 15 years old when the two
began dating and carrying on a sexual relationship. Thus, the grant of immunity
protected Owens-Pimentel from charges of unlawful sexual intercourse with a person
under 18. (See Pen. Code, § 261.5.)

                                             4
the males picked up her and Shaniz from Shaniz‟s house and they went to the FoodMaxx
parking lot.
       At trial, Owens-Pimentel admitted she was in the backseat of the car during the
robbery. She testified that prior to the robbery, she did not hear about a plan to rob
someone and she thought they were driving to Sacramento for Kellogg, the driver, to
finish his tattoo. Only when she saw defendant get out of the car and saw a gun under his
sweater did she realize what was going to happen. During her testimony, she described
the following: defendant was sitting in the front passenger seat; Fearington was in the
rear passenger seat; defendant and Fearington got out of the car when it stopped; and
Kellogg, who was sitting in the driver‟s seat, stayed inside the car during the robbery.
       Owens-Pimentel testified that she did not see the victim because a shirt hung
across her rear, driver‟s side window blocking her view. However, when defendant and
Fearington got back in the car they had a black fanny pack and cell phone. Fearington
asked her if she spoke Spanish because the cell phone was locked in Spanish and he
wanted to unlock it. Owens-Pimentel said that after the robbery, the group drove to
FoodMaxx to use the Coinstar machine. She and Shaniz waited in the car while the boys
went inside with the fanny pack. Shortly after they returned from the Coinstar machine,
the police arrived.
       At trial, defense counsel cross-examined Officer Slay about her training
concerning field showups, the protocols she followed in this case, and her interactions
with Harris during this process. Amidst this topic, the following colloquy ensued:
       “[DEFENSE COUNSEL]: Did you ever receive any training on how to present
people for a lineup in the station, like we see on television?
       “[OFFICER SLAY]: No, I haven‟t.
       “[DEFENSE COUNSEL]: [D]id you ever receive any training on how to do a
photo lineup . . . ?
       “[OFFICER SLAY]: Yes.

                                              5
       “THE COURT: Counsel, what‟s the relevance of a lineup or a photo lineup? She
didn‟t do a photo lineup or a lineup. You‟re questioning her about a field show-up . . . .
Come on, let‟s move on. Move on.
       “[DEFENSE COUNSEL]: Did you ever receive any training about the elements
of a lineup?
       “[¶] . . . [¶]
       “[PROSECUTOR]: Objection. Relevance.
       “[DEFENSE COUNSEL]: It‟s very relevant. It goes to the validity and the
conducting of this lineup.
       “THE COURT: I understand. And I will -- I‟m prepared to sustain the objection
because you‟re asking her about a lineup. But there was no lineup in this case. She‟s
talking about an in-field show-up[.] An in-field show-up is not a lineup. There‟s [sic]
two distinct things. There was no lineup in this case. There was an in-field show-up[.]
So if you change your term, then I‟ll overrule the objection. Ask her about the in field
show-up, not a lineup. There was no lineup here.
       “[DEFENSE COUNSEL]: Your Honor, may I approach?
       “THE COURT: No, you may not. Ask her about a show-up; okay?
       “[DEFENSE COUNSEL]: Have you ever been trained about the difference
between a show-up and a lineup?
       “[OFFICER SLAY]: Yes.
       “[DEFENSE COUNSEL]: Have you ever received information about the
difference between a show-up and a lineup?
       “[¶] . . . [¶]
       “[OFFICER SLAY]: I‟m not sure where you‟re going with this.
       “[DEFENSE COUNSEL]: Okay. [¶] At a field show-up one person is shown at a
time; correct?
       “[OFFICER SLAY]: Correct.

                                             6
       “[DEFENSE COUNSEL]: And that‟s called a sequential lineup; is that correct?
       “[OFFICER SLAY]: Correct.
       “[DEFENSE COUNSEL]: And in a photo array or regular lineup, people are
shown to a witness in groups; is that correct?
       “[OFFICER SLAY]: Correct.
       “[DEFENSE COUNSEL]: Have you ever been told why people are shown in
groups?
       “[PROSECUTION]: Objection. Relevance.
       “THE COURT: This may have some marginal relevance. I‟ll allow it. [¶] You
can answer the question.
       “THE WITNESS: No.
       “[DEFENSE COUNSEL]: You have not. Okay. [¶] Have you ever received any
information about something called a double blind show-up?
       “[OFFICER SLAY]: No.
       “[DEFENSE COUNSEL]: Have you ever received information about a double
blind lineup?
       “[OFFICER SLAY]: No.
       “[DEFENSE COUNSEL]: Have you ever received any training so as not to
accidentally give any nonverbal clues during a show-up?
       “[OFFICER SLAY]: Yes.
       “[¶] . . . [¶]
       “[DEFENSE COUNSEL]: In your training, do you have any information whether
the use of weapons or force in a crime can affect a show-up?
       “[OFFICER SLAY]: No.
       “[DEFENSE COUNSEL]: Okay. [¶] Have you ever done anything other than a
sequential display of people during a field show-up?
       “[OFFICER SLAY]: No.”

                                             7
       Defense counsel then moved away from questioning about protocols and
comparisons between field showups and lineups and began asking Officer Slay about the
specific procedures she followed with Harris, such as statements she made to him in the
car on the way to the field showup; the advisement she read him about the identification
process; and where they parked in the FoodMaxx parking lot in relation to the white
Nissan Altima.
       The following day, defense counsel moved for a mistrial “on the grounds that
relevant areas of cross-examination were foreclosed to the defense without proper
examination of the relevance.” She stated that “[t]he Sixth Amendment itself protects the
right to cross-examine witnesses against you thoroughly and to test relevant areas that
may affect the outcome of this trial. [¶] . . . [D]uring my cross-examination of Officer
Slay where I was . . . attempting to make a brief inquiry into the reliability of the show-up
. . . to see if any of the safeguards present in . . . the elements of lineups were present[,]
[¶] I was foreclosed from asking anything about any of the safeties that were not present
in this show-up. . . . [and] was instructed to only speak about this show-up.”
       However, defense counsel did not explain how additional questioning on the
safeguards of a lineup would have proven that the field showup was unreliable or
defective.
       The court denied the motion for a mistrial, stating that some of defense counsel‟s
questions “were clearly irrelevant.” Defense counsel “proceeded to go into a physical
lineup . . . where people are actually shown a number of different suspects, when this
wasn‟t a physical lineup. [¶] [She] proceeded to go into a photographic lineup, when
there was no photographic lineup in this case. [¶] . . . [She] seemed like [she was] trying
to feel [her] way around it, and then [she] finally figured it out that where [she] needed to
go with the officer . . . is whether she followed proper procedures in conducting this
particular show-up. Okay. And then [defense counsel] did go into it. And then [she] did
question her about her knowledge of certain procedures. And I allowed that.”

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       The jury found defendant guilty on all counts. Defendant timely appealed.
                                       DISCUSSION
                                               I
                   Defense Counsel’s Cross-Examination Of Officer Slay
       On appeal, defendant first argues that “the judgment of conviction must be
reversed because [he] was denied his federal and state constitutional rights to due process
of law and confrontation [because] the trial court erroneously limited his cross-
examination” of Officer Slay regarding the field showup process used to identify
defendant. We disagree.
       “If the defendant raises a Confrontation Clause challenge based on the exclusion
of an area of inquiry, we review de novo. [However, i]n reviewing a limitation on the
scope of questioning within a given area, we recognize that „trial judges retain wide
latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness‟ safety, or interrogation that is repetitive or
only marginally relevant.‟ [Citation.] A challenge to a trial court‟s restrictions on the
manner or scope of cross-examination on nonconstitutional grounds is thus reviewed for
abuse of discretion.” (United States v. Larson (9th Cir. 2007) 495 F.3d 1094, 1101,
italics added.)
       As applied here, defendant‟s challenge goes to the limitation on the scope of his
cross-examination of Officer Slay regarding procedural safeties in place during the field
showup. The limitation pertains to scope rather than area of inquiry because defendant
was permitted to question Officer Slay in detail about the safety procedures she followed
during the field showup, but claims to have been limited in the extent of this line of
questioning. Therefore, we review for abuse of discretion.
       Defendant argues that because the prosecution‟s case “turned primarily on
inherently unreliably [sic] eyewitness identification evidence,” it was imperative that

                                               9
defense counsel be allowed to “fully question [Officer Slay] about the identification
process.” He claims that by limiting the cross-examination of Officer Slay regarding the
procedural safeties in place for lineups, as compared to field showups, he was denied “the
opportunity to discover the truth.”
       “ „[T]he Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.‟ ” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679
[89 L.Ed.2d 674, 683].) Under an abuse of discretion review, “ „unless the defendant can
show that the prohibited cross-examination would have produced “a significantly
different impression of [the witnesses‟] credibility” [citation], the trial court‟s exercise of
its discretion in this regard does not violate the Sixth Amendment.‟ ” (People v.
Chatman (2006) 38 Cal.4th 344, 372.)
       Here, while it is true that defense counsel told the court that questioning Officer
Slay about stationhouse and photo lineups went to the validity and conduct of the field
showups, counsel made no offer of proof as to what she expected to uncover or how such
discoveries would impact the validity of the field showup or Officer Slay‟s credibility.
Even now, defendant does not provide us with any explanation of how additional
questioning on stationhouse and photo lineups would have called into question the
validity of the field showup or the conduct or credibility of Officer Slay; he asserts only
that he was denied “the opportunity to discover” such information. Defendant‟s inability
to show any specific prejudice in this situation makes it impossible for him to show that
the trial court abused its discretion.
       Furthermore, although defendant claims that the cross-examination of Officer Slay
was unconstitutionally limited because defense counsel was prevented from “inquir[ing]
into the reliability of the show-up” by asking if “the safeguards present in . . . the
elements of lineups were present,” this assertion is inconsistent with the facts. While it is
true that the court directed defense counsel to “Ask [Officer Slay] about the in field

                                              10
show-up, not a lineup” because “[t]here was no lineup here,” defendant fails to mention
that, following this interaction, defense counsel nevertheless proceeded to question
Officer Slay about lineups by comparing the procedures of lineups and field showups.
Thus, defense counsel asked Officer Slay about the safeties in place in a field showup as
compared to a stationhouse or photo lineup anyway. The court allowed this line of
questioning and even overruled an objection by the prosecution when defense counsel
asked Officer Slay if she knew why the police show people in groups in stationhouse and
photo lineups, stating that, “This may have some marginal relevance. I‟ll allow it.”
Because defense counsel‟s further questioning addressed the subject matter that
defendant here purports he was unconstitutionally restricted from addressing, defendant
cannot “show the limitation on cross-examination [was] a prejudicial limitation”;
(United States v. Jorgenson (10th Cir. 1971) 451 F.2d 516, 520) therefore, his claim
cannot stand.
       Finally, in regard to defendant‟s due process claim, there is no meaningful
analytical distinction between this and the right to confrontation. (See Strickland v.
Washington (1984) 466 U.S. 668, 684–685, [80 L.Ed.2d 674, 691] [“The Constitution
guarantees a fair trial through the Due Process Clauses, but it defines the basic elements
of a fair trial largely through the several provisions of the Sixth Amendment”].) Thus,
the resolution of defendant‟s confrontation claim resolves his due process claim as well.
                                             II
                          Instruction On Accomplice Testimony
       Defendant next argues that “the trial court erred prejudicially in failing sua sponte
to instruct the jury on accomplice testimony” regarding the statements made by Owens-
Pimentel during trial. Specifically, defendant claims the court should have given two
different instructions: CALCRIM No. 335, regarding the testimony of a witness who was
undisputedly an accomplice; and CALCRIM No. 334, regarding the need for
corroborating evidence when it is disputed whether the witness was an accomplice.

                                             11
Defendant claims that the omission of these instructions violated his right to due process
of law and a fair trial.
       As to defendant‟s claim that the trial court should have instructed the jury on
CALCRIM No. 335 (accomplice testimony regarding a witness who was undisputedly an
accomplice), it was not error for the trial court to omit this instruction. All evidence
points to the conclusion that, it was at least disputed whether Owens-Pimentel was an
accomplice. Defendant himself admits this point when he says that “Owens-Pimentel . . .
could be found to be an accomplice in this case.” (Italics added.) The use of the word
“could” clearly acknowledges that it is disputed whether Owens-Pimentel was an
accomplice because it implies that she could also not be an accomplice. Furthermore,
during closing arguments, it was defense counsel who implied that Owens-Pimentel lied
about her presence in the car during the robbery and was “making up a new story” when
she testified about the details of the robbery at trial. This conflicting evidence regarding
the extent of Owens-Pimentel‟s involvement in the robbery creates at least a dispute as to
whether she was an accomplice. Therefore, CALCRIM No. 335 would have been
inappropriate in this case. Accordingly, we are left with only defendant‟s claim
regarding CALCRIM No. 334.
       The People claim that the omission of CALCRIM No. 334 was not error because
Owens-Pimentel was not an accomplice. In the alternative, the People argue that any
error regarding an instruction on accomplice testimony was harmless beyond a
reasonable doubt because the testimony of Owens-Pimentel “was sufficiently
corroborated by independent evidence of [defendant]‟s guilt.” We agree.
       Our Supreme Court has held that “ „the failure to instruct on accomplice
testimony . . . is harmless where there is sufficient corroborating evidence in the
record.‟ ” (People v. Zapien (1993) 4 Cal.4th 929, 982.) Here, the testimony of multiple,
independent parties including the victim and Harris provided sufficient corroborating
evidence supporting Owens-Pimentel‟s testimony. Most significantly, Owens-Pimentel

                                             12
identified defendant as the person with the gun, which was corroborated by the victim‟s
identification of defendant as the robber with the gun to Officer Vasquez and Harris‟s
identification of defendant -- immediately following the incident and at trial -- as the
front passenger who pointed the gun at the victim. Owens-Pimentel testified that
defendant had the gun under his sweater when he went to rob the victim. The victim
corroborated this evidence when she demonstrated in court that the robber had the gun
under his sweatshirt. In addition, Owens-Pimentel testified that defendant came back to
the car with a black fanny pack that contained coins and a cell phone. This testimony
was consistent with that of the victim, who described that on the day of the robbery, she
was wearing a black fanny pack containing money and her cell phone.
       There was also corroboration of the more minor details of the robbery. For
example, Owens-Pimentel described how one of the other parties in the car asked if she
spoke Spanish because the victim‟s phone was locked in Spanish and he wanted to
unlock it. The victim speaks Spanish. Owens-Pimentel testified how, prior to the
robbery, Kellogg drove around the neighborhood “[l]ooking for somebody” before
pulling the car over, though she could not remember how many times they drove around.
Her description was consistent with Harris‟s testimony that the Nissan Altima circled the
block three times before pulling over. Owens-Pimentel and Harris both testified that the
rear driver‟s-side window was covered. Finally, Owens-Pimentel‟s testimony that the
driver, Kellogg, stayed in the car was consistent with Harris‟s testimony that only the
front and back male passengers got out of the car and that the driver stayed in the car.
       Based on the extent of the corroborating testimony of the other witnesses, we are
satisfied that any error in failing to give CALCRIM No. 334 was harmless beyond a
reasonable doubt.




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                                   DISPOSITION
     The judgment is affirmed.



                                            ROBIE   , J.



We concur:



     NICHOLSON        , Acting P. J.



     DUARTE        , J.




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