Filed 7/29/16 P. v. Smith CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144829
v.
MITCHELL BERNARD SMITH,                                              (San Francisco County
                                                                     Super. Ct. No. SCN221759)
         Defendant and Appellant.


         Defendant was sentenced to state prison for an aggregate term of nine years after a
jury found him guilty of felony second degree robbery and misdemeanor assault, and the
trial court found true enhancement allegations concerning prior convictions. On this
timely appeal, he presents one claim of erroneously admitted evidence, and two claims of
instructional error. We conclude defendant’s contentions are without merit, and affirm.
                                                 BACKGROUND
         On a November evening in 2013, Daniel Acevedo emerged from the Civic Center
BART Station and began walking home through the Tenderloin district of San Francisco.
He was carrying a laptop computer in a case and listening to music on the earphones of
his iPhone, which was in his back pocket of his trousers. Sensing he was being followed,
Acevedo turned suddenly and confronted defendant, a Black male whom he repeatedly
and positively identified in court, and whose face he took pains to record in his memory.
They grappled for possession of Acevedo’s iPhone. Acevedo observed three men across
the street run over and join defendant in pummeling him.




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       Eventually, possession of both the bag and the phone were gained by the attackers,
who began walking towards the Civic Center BART Station. Within two minutes,
Acevedo was at a nearby store, where he called police. Officers arrived at the store
within minutes. Acevedo gave them information that allowed police to locate his iPhone.
A description provided by Acevedo was broadcast by police. On the basis of broadcast,
officers spotted and detained defendant, who was carrying Acevedo’s computer case,
near the Civic Center BART station. Acevedo’s phone was discovered in the pocket of
defendant’s jacket.
       Within 10 minutes of calling police, Acevedo was taken to look at a “suspect,”
whom Acevedo identified as defendant, one of the persons who had robbed him. At the
police station Acevedo identified the computer case and phone as his.
                                         REVIEW
       Chronologically, the first error identified by defendant is framed in his opening
brief as follows: “The impermissibly suggestive cold show identification procedure
resulted in insufficient evidence that the trial identification made was sufficient to support
appellant’s convictions and violated appellant’s fourteen[th] amendment right to due
process.” But testimony from defendant and then Officer James Horan concerning the
identification, and the antecedent circumstances, of the field identification procedures,
did not elicit an objection by the defense on the ground now advanced by defendant.
Because of the absence of a timely and specific objection, the issue was not preserved for
review. (Evid. Code, § 353, subd. (a); People v. Cunningham (2001) 25 Cal.4th 926, 989
[rule applied to identifications claimed to be impermissibly suggestive].)
       Defendant hopes to avoid this conclusion with the trial testimony of Dr. Geoffrey
Loftus, whom defendant describes as “a well-known identification expert,” who “testified
for the defense about the deficits of the cold show identification procedures and how
eyewitness memory is effected by various factors.” Or, as defense asserts at another
place, “Dr. Loftus clearly demonstrated the unreliability and bias of the pre-trial
identification. Thus the contention that the pre-trial identification was unreliable and
biased is properly before the court.” But Dr. Loftus could not testify on the constitutional


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issue of whether the lineup was unduly suggestive. (See People v. Jones (2013)
57 Cal.4th 899, 950 [Experts may not testify to legal conclusions.].) At best, his
testimony might present the jury with an issue of fact, which by definition could go either
way. (See Foster v. California (1969) 394 U.S. 440, 442, fn. 2 [“The reliability of
properly admitted eyewitness identification . . . is a matter for the jury.”].) In other
words, Dr. Loftus’s testimony could go only to the weight of the evidence on
identification, not its admissibility. (See People v. Boyer (2006) 38 Cal.4th 412,
480–481.) The legal issue of admissibility could only be decided by the court, ordinarily
accomplished with an evidentiary hearing conducted in accordance with Evidence Code
section 402, as apparently occurred in People v. Morrow (1969) 276 Cal.App.2d 700, on
which defendant relies. Only then would the prosecution’s identification evidence be
kept from the jury. Dr. Loftus’s testimony cannot make good the failure to comply with
the statutory procedure for preserving this issue for appellate review.
       Defendant next contends, again quoting from the caption in his brief: “Denying
appellant’s request for instruction of third party culpability was reversible error when it
violated appellant’s constitutional rights to due process and trial by jury.” The ensuing
argument in the brief establishes that defendant is complaining about the trial court
declining to use a pinpoint instruction submitted by defendant which the court refused, on
two grounds: (1) “There is no substantial evidence to instruct the jury on third party
culpability,” and (2) “We are giving CALCRIM 220 on reasonable doubt, and
[CALCRIM] 373 on other perpetrators. The proposed third party culpability instruction
does not add anything more to these instructions . . . . therefore, . . . I’m denying the
pinpoint instruction.” (Italics added.)
       However, because defendant did not include in the record on appeal the text of the
denied instruction, its actual language cannot be evaluated. Thus, defendant cannot
disprove the trial court’s statement that the substance of “proposed . . . pinpoint
instruction” was not covered by other instructions, which constitutes a legitimate reason
for refusing to use a special instruction. (See People v. Coffman and Marlow (2004)
34 Cal.4th 1, 99 [“ ‘a trial court need not give a pinpoint instruction if it . . . merely


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duplicates other instructions’ ”].) Accordingly, he fails to demonstrate either the
existence of the claimed error (e.g., People v. Contreras (2009) 177 Cal.App.4th 1296,
1301; People v. Blackwood (1983) 138 Cal.App.3d 939, 949) or that it was prejudicial.
(See People v. Hartsch (2010) 49 Cal.4th 472, 504 [“even if such instructions properly
pinpoint the theory of third party liability, their omission is not prejudicial because the
reasonable doubt instructions give defendants ample opportunity to impress upon the jury
that evidence of another party’s liability must be considered in weighing whether the
prosecution has met its burden of proof”].)
       Defendant states his final contention as follows: “Failure to relate third party
defense to prosecution’s burden of proof beyond a reasonable doubt was reversible
error.” He reasons that CALCRIM No. 220, the standard instruction on reasonable
doubt, “is adequate when the jury is reviewing the elements of the offense” charged, yet
“is inadequate to inform the jury as to the burden applicable to affirmative defenses” and
thus is inadequate when the jury is reviewing “a defense theory, especially one that points
the finger at a third party . . . . [¶] . . . [¶] [T]he failure to relate a theory of the defense
to the burden of proof was critical to the outcome of this case. The absence of any
clarifying instruction on this key and ultimate issue” [misled the jury] “as to the
prosecution’s burden and the reasonable doubt standard.” This reasoning is flawed.
       By conceding that CALCRIM No. 220 is legally correct, and that he is addressing
“clarifying” instructions, defendant must confront the principle that “ ‘A party may not
complain on appeal that an instruction correct in law and responsive to the evidence was
too general or incomplete unless the party has requested appropriate clarifying or
amplifying language.’ ” (People v. Coddington (2000) 23 Cal.4th 529, 603.) And by
implicitly treating the matter as one within the trial court’s sua sponte duties, defendant
impliedly concedes he made no such request.
       Moreover, although he does not mention it, defendant is talking about a “pinpoint”
instruction, which comes with rules of its own: “Under appropriate circumstances, ‘a
trial court may be required to give a requested jury instruction that pinpoints a defense
theory of the case by, among other things, relating the reasonable doubt standard of proof


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to particular elements of the crime charged.’ ” (People v. Coffman and Marlow, supra,
34 Cal.4th 1, 99.) “Even if proper, however, pinpoint instructions ‘are not required to be
given sua sponte.’ ” (People v. Hughes (2002) 27 Cal.4th 287, 361.) Which is a different
way of concluding that it was up to defendant at his trial to raise the issue and propose
appropriate instructions. This he did not do. Here too, without a proposed instruction
before us, we cannot conclude that its substance was not covered by other instructions.
                                     DISPOSITION
       The judgment of conviction is affirmed.



                                                  _________________________
                                                  Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Miller, J.




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