Filed 6/25/15 P. v. Hernandez CA2/2
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
 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 This opinion has not been certified for publication or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

                                        SECOND APPELLATE DISTRICT

                                                     DIVISION TWO



 THE PEOPLE,                                                             B255800

           Plaintiff and Respondent,                                     (Los Angeles County
                                                                         Super. Ct. No. BA409469)
           v.

 ORLANDO HERNANDEZ,

           Defendant and Appellant.




           APPEAL from a judgment of the Superior Court of Los Angeles County.
 Stephen A. Marcus, Judge. Affirmed.
           Lenore DeVita, under appointment by the Court of Appeal, for Defendant and
 Appellant.
           Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
 General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, and
 Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Orlando Hernandez (defendant) appeals his conviction for being a felon
in possession of a firearm and ammunition because, in his view, the trial court erred in
denying him a midtrial continuance so he could try to recreate and photograph the
vantage point of the police officer who saw him stash the loaded gun, which defendant
claimed would help him prove that the officer could not have seen that act. Because the
trial court did not abuse its discretion in denying a continuance, and because our review
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of the sealed transcripts of the Pitchess hearings reveals no error, we affirm defendant’s
convictions and the resulting four-year prison sentence.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Some time after midnight on a day in late March 2013, Los Angeles Police
Department Officer Roberto Ruiz (Officer Ruiz) spotted defendant and another man
looking into a parked car. As soon as defendant and Officer Ruiz made eye contact,
defendant grabbed his waistband and took off at a run. Officer Ruiz got out of his patrol
car and chased defendant up a residential driveway. Defendant ran in front of a sport
utility vehicle (SUV) with an open hood and paused for 10 to 15 seconds. Officer Ruiz
took cover on steps cut into a cinderblock wall running along the left side of the
driveway. From this slightly elevated vantage point, and due to the nearly full moon and
a “bright” light affixed to the residence, Officer Ruiz watched defendant place a “shiny
object” into the SUV’s engine compartment. Soon thereafter, defendant complied with
Officer Ruiz’s demands that he put his hands in the air, and Officer Ruiz recovered a
chrome revolver containing five live rounds from the engine compartment.
       The People charged defendant with being a felon in possession of a firearm (Pen.
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Code, § 29800, subd. (a)(1)) , and being a felon in possession of ammunition (§ 30305,
subd. (a)(1)). The People further alleged that defendant was on bail at the time of the
crimes (§ 12022.1), that he had two prior felony convictions (§ 1203, subd. (e)(4)), and


1      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2      All further statutory references are to the Penal Code unless otherwise indicated.
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that he had served two prior prison terms (§ 667.5, subd. (b)).
       At trial, defendant denied having a gun or being anywhere near the SUV; he also
testified that Officer Ruiz had harassed him in the past and threatened to “fuck him up” if
he ever caught him. Defendant also called Robert Marquez (Marquez) as a witness.
Marquez testified that Officer Ruiz briefly questioned him in 2008, and asked him if a
small baggie of white powder was his before allowing Marquez to leave; Officer Ruiz
denied showing Marquez any powder, and was not disciplined after Marquez’s complaint
was investigated.
       The jury convicted defendant of both counts, and the trial court—following a
waiver of jury trial—found the remaining allegations true. The trial court sentenced
defendant to four years in state prison—two years on the felon in possession of a firearm
count, and an additional two years on the bail allegation; the court stayed the ammunition
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count and struck the prior prison term allegation.
       Defendant timely appeals.
                                      DISCUSSION
I.     Denial of Request For Continuance
       On the third day of trial, defendant asked for a one-day continuance so he could
recreate the scene on the driveway and illustrate, with a photograph, that Officer Ruiz
could not have seen defendant place the loaded gun in the SUV’s engine compartment.
Defendant explained that his request was timely because Officer Ruiz had only testified
to his vantage point during the last day of trial, and defendant had located an identical
SUV and was going to ask its owner to borrow it. The trial court denied defendant’s
request for three reasons: (1) it would be nearly impossible to recreate Officer Ruiz’s
vantage point in the scene because that vantage point turns on “a million factors,”
including the angle of the officer’s head, the orientation of the SUV, the angle of
defendant’s body, the relative heights of the defendant and Officer Ruiz, and the lighting;


3      We granted defendant’s request to judicially notice the trial court’s amended
abstract of judgment.
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(2) defendant had not exercised reasonable diligence because he waited until the middle
of trial to attempt to recreate the scene; and (3) any photograph from the recreated scene
would “confuse” and “mislead” the jury.
       Defendant argues that the trial court abused its discretion in denying his request
for a continuance, and that his trial counsel was constitutionally ineffective for not being
more diligent in his investigation. We review denials of a continuance for an abuse of
discretion (People v. Hajek & Vo (2014) 58 Cal.4th 1144, 1181), and ineffective
assistance of counsel claims de novo (People v. Taylor (1984) 162 Cal.App.3d 720, 725;
cf. People v. Callahan (2004) 124 Cal.App.4th 198, 201 [abuse of discretion review
when new trial is granted due to ineffective assistance of counsel]).
       A trial court may grant a continuance only upon a showing of “good cause.”
(§ 1050, subd. (e).) When a continuance is requested midtrial, the court’s evaluation of
good cause turns not only on how the requesting party will benefit from the continuance,
but also on the likelihood that benefit will come to pass; the burden of any continuance
on other witnesses, the jurors, and the court; and whether a continuance would further or
undermine substantial justice. (People v. Panah (2005) 35 Cal.4th 395, 423.)
       The trial court rested its denial of the continuance in part on its view that the
photographs defendant would obtain from his attempt to recreate the scene would be too
dissimilar to the actual scene to be admissible and thus misleading and confusing to the
jury (presumably under Evidence Code section 352). These considerations rest on
evidentiary rulings, and are consequently reviewed for an abuse of discretion. (People v.
Gonzalez (2006) 38 Cal.4th 932, 950.) There was no abuse here.
       Defendant’s attempt to recreate Officer Ruiz’s vantage point functioned as an
experiment, and experiments are admissible only if the proponent demonstrates (1) the
subject of the experiment is relevant, (2) the experiment was conducted under conditions
that are the same or substantially similar to those of the actual occurrence, and (3) the
admission of the experiment’s results will not consume undue time, confuse the issues, or
mislead the jury. (People v. Boyd (1990) 222 Cal.App.3d 541, 565.) Unless the second

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requirement is met, the proponent will be unable to authenticate the experiment’s result—
in this case, a photograph—as “a fair and accurate representation of the scene depicted.”
(People v. Goldsmith (2014) 59 Cal.4th 258, 267-268.)
       Although Officer Ruiz’s ability to see defendant’s movements was certainly
relevant to the credibility contest between the two, the trial court did not abuse its
discretion in concluding that the last two foundational requirements of defendant’s
proposed experiment were lacking. The crucial fact to be drawn from the experiment
was Officer Ruiz’s line of sight. But that fact turns on the interaction of a number of
variables, including the height of defendant’s midsection and his hands; the height of
Officer Ruiz’s eyes (which itself turns on his height, how much he was crouched while
on the steps, and the elevation of the steps); and the angle and positioning of the SUV.
The data to fill in these variables are unavailable: Officer Ruiz testified that he could see
defendant’s midsection, and defendant denies even being there. Defendant points to the
trial court’s reliance on the potential differences in lighting and argues this variable is
irrelevant because lighting is not the issue (see People v. Mayfield (1997) 14 Cal.4th 668,
747, overruled in part on other grounds by People v. Scott (June 8, 2015, S064858)
2015 Cal. Lexis 3903, fn. 2 [lighting can be irrelevant]), but the trial court’s citation to a
variable defendant now says is irrelevant does not undermine the trial court’s rightful
concerns regarding the other variables. Nor did the trial court abuse its discretion in
concluding that the absence of accurate inputs would yield a photograph that was
“misleading” or “confusing” to a jury; this finding constitutes a proper, independent basis
for exclusion. (Evid. Code, § 352, subd. (b) [providing for exclusion of evidence when
its probative value is “substantially outweighed” by a “substantial danger of . . .
confusing the issues, or of misleading the jury”].)
       For these reasons, the trial court’s evidentiary concerns provided ample basis to
deny defendant’s request for a continuance. This conclusion disposes of defendant’s
remaining contentions. Defendant asserts that his constitutional rights were violated, but
the proper application of the rules of evidence does not violate the Constitution. (People

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v. Eubanks (2011) 53 Cal.4th 110, 143.) Defendant suggests that the trial court was
wrong to rely in part on his counsel’s tardiness in seeking a continuance, but the court’s
reliance on this further reason in no way affects the correctness of its evidentiary reasons
for denying the continuance. (See People v. Letner & Tobin (2010) 50 Cal.4th 99, 145
[“On appeal we consider the correctness of the trial court’s ruling itself, not the
correctness of the trial court’s reasons for reaching its decision.”].) And defendant
argues that his counsel was constitutionally ineffective, but that claim lacks merit because
the inadmissibility of the experimental evidence means that defendant was not prejudiced
by any deficiency in his lawyer’s representation. (Strickland v. Washington (1984) 466
U.S. 688, 694 [ineffective assistance of counsel claim requires a showing of deficient
performance and prejudice].)
II.    Pitchess Motion
       Defendant also asks us to review the transcripts from the in camera hearings the
trial court conducted on Officer Ruiz and his partner, as well as the followup in camera
hearing the court conducted after disclosing information regarding Officer Ruiz. We
conducted a review of the in camera proceedings in the manner contemplated by the
decision in People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230, and found the record to
be adequate to permit meaningful appellate review. (See People v. Prince (2007) 40
Cal.4th 1179, 1285-1286.) We have independently determined from the entire record and
that of the sealed in camera proceedings that the trial court properly exercised its
discretion and that the trial court did not err in refusing to disclose further materials.




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          _______________________, J.
                                             HOFFSTADT
We concur:


____________________________, P. J.
             BOREN


____________________________, J.
      ASHMANN-GERST




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