Filed 4/8/14 P. v. Perry CA1/5
                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,                                       A136732
                   v.
ERIC LEE PERRY,                                                          (Alameda County
                                                                         Super. Ct. No. 161564)
         Defendant and Appellant.


         Appellant Eric Lee Perry was convicted, after a jury trial, of first degree murder
(Pen. Code, § 187, subd. (a)) and two counts of attempted second degree robbery (id.,
§§ 211, 212.5, subd. (c), 664). Appellant’s sole contention on appeal is the trial court
erred by excluding evidence that a third party was culpable for the charged crimes. We
reject this contention and affirm.
                                            I.        BACKGROUND
A.       Evidence Presented at Trial
         On the evening of August 20, 2007, Ronald Spears, Jr., was celebrating his
birthday with Tara Rother and Angelina Richmond. Spears drove the group to Oakland
in his silver Dodge car, with Rother in the front passenger seat and Richmond in back.
         They got lost on the surface streets of Oakland and pulled into a gas station to ask
for directions. They saw a stranger—identified by Rother as appellant—standing
between the cashier’s window and the gas pumps. Spears asked appellant for directions.
Appellant indicated a direction and asked for a ride because he was going the same way.
Spears agreed and appellant got in the back, right passenger seat.

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       Appellant then produced a gun, pointed it at Spears’s head and said, “Break
yourself.” Spears gave appellant cash, and appellant demanded Spears also give him a
long chain around his neck. As Spears was handing appellant the chain, it dropped to the
floor. Spears and appellant began to fight over the gun, with appellant pulling Spears
into the back seat. The two men exited the car and Spears began to run. Appellant shot
Spears and then ran away. Spears died from the gunshot wound.
       Rother unequivocally identified appellant at trial. Rother admitted she had been
drinking and had taken ecstasy that night, and there was conflicting evidence as to the
quantity of alcohol and drugs she consumed. However, Rother testified she did not feel
impaired, and police officers who responded after the shooting testified she did not seem
intoxicated or impaired. Richmond could not identify the shooter.
       The gas station cashier testified appellant, a regular customer, bought Newport
cigarettes and a “Swisher” brand cigar less than five minutes before the shooting. Rother
saw a Swisher cigar tucked behind appellant’s ear before he got into Spears’s car. After
the shooting, a pack of Newport cigarettes and a cigar were found in Spears’s car on the
floor of the back, right passenger seat. Fingerprints taken from these items were
identified as appellant’s.
       After the shooting, Spears’s chain was not found in his car or at the scene. The
chain had a distinctive clasp and was constructed by connecting a necklace and bracelet.
About 11 months after the shooting, a chain was found in appellant’s possession. Both
Rother and Spears’s ex-girlfriend identified the chain found in appellant’s possession as
Spears’s. It also matched a chain visible in several photographs of Spears.
B.     Proffered Third Party Culpability Evidence
       Prior to trial, appellant sought to introduce evidence of the culpability of a third
party, Kevin Duarte, for the charged crimes. For the purposes of the pretrial motion, the
parties agreed to a stipulated statement of facts as follows.
       Approximately two weeks after the charged crimes, Duarte approached Tony
Simon as he sat in his car at a gas station in Oakland. Duarte fired multiple gunshots at
Simon, including shots as Simon attempted to drive away. Simon died from the gunshot


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wounds. The shooting took place about 1:00 a.m. at a gas station roughly one mile from
where Spears was shot. Duarte and Simon knew each other prior to the shooting. Duarte
had been shot some months earlier and believed Simon was involved in the attack. In
addition, about an hour before the shooting, Duarte and Simon, a known drug dealer, had
a confrontation regarding drug sales. After his arrest, Duarte confessed to the shooting.
       Duarte matched the general description of the suspect in Spears’s shooting: a
young African-American male, light skinned, short dreadlocks, about 5 feet 9 inches tall,
and a medium build. Both Rother and Richmond were shown photographs of Duarte in
lineups; neither identified him as the shooter.
       When questioned by police about the Spears shooting, Duarte denied any
involvement. He lived very close to the gas station and stated he was nearby when the
shooting took place, and soon thereafter asked the gas station cashier what had happened.
The gas station cashier corroborated this account.
       Duarte was familiar with the Spears shooting. Spears was Duarte’s friend’s wife’s
cousin, and one of the women accompanying Spears that night knew a friend of Duarte’s.
Duarte had heard it was Spears’s birthday and that he was driving a silver Dodge. Duarte
had also heard the woman who knew his friend had been shown a picture of Duarte in a
lineup but had not identified him. No fingerprint or ballistics evidence linked Duarte to
the Spears shooting.
       The trial court denied appellant’s motion to introduce this evidence pursuant to
Evidence Code section 352, finding “any probative value would be substantially
outweighed by its prejudicial effect.”
                                   II.     DISCUSSION
       “In general, third party culpability evidence is admissible if it ‘rais[es] a
reasonable doubt of defendant’s guilt.’ [Citation.] This does not mean, however, that no
reasonable limits apply. Evidence that another person had ‘motive or opportunity’ to
commit the charged crime, or had some ‘remote’ connection to the victim or crime scene,
is not sufficient to raise the requisite reasonable doubt. [Citation.]” (People v. DePriest
(2007) 42 Cal.4th 1, 43.) “ ‘[T]o be admissible, evidence of the culpability of a third


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party offered by a defendant to demonstrate that a reasonable doubt exists concerning his
or her guilt . . . must link the third person either directly or circumstantially to the actual
perpetration of the crime. In assessing an offer of proof relating to such evidence, the
court must decide whether the evidence could raise a reasonable doubt as to defendant’s
guilt and whether it is substantially more prejudicial than probative under Evidence Code
section 352.’ [Citations.]” (People v. Elliott (2012) 53 Cal.4th 535, 580 (Elliott).) “A
trial court’s ruling excluding third party culpability evidence is reviewed for abuse of
discretion. [Citation.]” (Id. at p. 581.)
       The trial court properly excluded the evidence of the Simon shooting. “Evidence
of a third party’s prior crimes is inadmissible to establish the third party’s criminal
propensity. [Citations.] For evidence of an uncharged offense to be admissible to
establish the third party’s identity as the perpetrator of the charged crimes, ‘ “[t]he pattern
and characteristics of the crimes must be so unusual and distinctive as to be like a
signature.” ’ [Citations.]” (Elliott, supra, 53 Cal.4th at pp. 580-581.)1 The two
shootings shared certain characteristics: both took place in the early morning hours at
nearby Oakland gas stations; both involved handguns; both victims were in their cars
when the shooter initially approached and were shot as they tried to escape. However,
these similarities are not “ ‘ “so unusual and distinctive as to be like a signature.” ’ ” (Id.
at p. 581; see also ibid. [robberies of armored truck guards at businesses immediately
after cash pickups, “whether considered separately or together, [were] not so unusual and
distinctive as to be like a signature”].) Indeed, the differences are far more significant:
Spears did not know his shooter, whom he approached only to ask for directions. In
contrast, Duarte and Simon had a months-long history involving at least two disputes,
one of which took place only an hour before the shooting. Exclusion of this evidence
was proper.


1     Appellant urges us to reject this standard for the admissibility of other crimes
evidence to show third party culpability, arguing it is inconsistent with Holmes v. South
Carolina (2006) 547 U.S. 319. We are bound by Elliott’s statement of the standard.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)


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       Appellant contends the remaining evidence—that Duarte fit the general physical
description of the suspect, was present at the gas station shortly after the shooting, and
knew certain details about the shooting—circumstantially link Duarte to the charged
crimes. The link is a tenuous one. The physical description Duarte matched is not
particularly unusual and no witness identified Duarte as the shooter. Duarte lived near
the gas station and his conduct—approaching the gas station cashier shortly after the
shooting to ask what had happened—is consistent with a lack of involvement in the
shooting. Details of the shooting were likely known by Duarte’s friends who had
connections to Spears and one of the passengers. Introduction of this marginally relevant
evidence would cause delay and risk confusing the jurors. It was not an abuse of
discretion to exclude this evidence under Evidence Code section 352.
       Even if the evidence had been improperly excluded, we would find any error
harmless. Most significantly, appellant’s fingerprints were found on a pack of Newport
cigarettes and a cigar left in Spears’s car, on the floor where the shooter sat. The gas
station cashier sold appellant Newport cigarettes and a cigar five minutes before the
shooting, and Rother saw a cigar behind appellant’s ear before he entered Spears’s car.
In addition, Rother unequivocally identified appellant as the shooter. Finally, Spears’s
distinctive necklace was found in appellant’s possession. In light of this evidence
incriminating appellant, it is not reasonably probable a more favorable outcome would
have occurred absent any error in the admission of the excluded evidence. (People v.
Hall (1986) 41 Cal.3d 826, 836 [reviewing error in excluding third party culpability
evidence under standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836–837].)2
                                   III.   DISPOSITION
       The judgment is affirmed.

2      Appellant contends any error violated his federal constitutional right to present a
complete defense and therefore should be reviewed under the standard set forth in
Chapman v. California (1967) 386 U.S. 18, 24. We disagree, as “the exclusion of weak
and speculative evidence of third party culpability does not infringe on a defendant’s
[federal] constitutional rights [to present a defense].” (People v. Gonzales (2012)
54 Cal.4th 1234, 1261.)


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                    SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




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