Filed 5/19/16 P. v. Mascorro 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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SECOND APPELLATE DISTRICT

                                                    DIVISION TWO


THE PEOPLE,                                                             B262793

          Plaintiff and Respondent,                                     (Los Angeles County
                                                                        Super. Ct. No. BA425891)
          v.

JERRY RAYMOND MASCORRO et al.,

          Defendants and Appellants.



          APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathleen Kennedy, Judge. Affirmed with modification.
          Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant
and Appellant Jerry Raymond Mascorro.
          James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant Edward Lopez Jr.
          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Rene Judkiewicz, Deputy Attorney General,
for Plaintiff and Respondent.
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       Defendants Jerry Mascorro (Mascorro) and Edward Lopez Jr. (Lopez Jr.)
(collectively, defendants) appeal their convictions for two counts of second-degree
robbery. Both defendants argue that the trial court erred in giving the standard
instruction on flight; Lopez Jr. contends that the court should have instructed on the
lesser-included offense of grand theft; Mascorro asserts that the court impermissibly
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barred the third codefendant’s expert on eyewitness testimony from answering any
hypothetical questions. We conclude there was no prejudicial error. However, we direct
that Lopez Jr.’s abstract of judgment be amended to correct a clerical error.
                 FACTUAL AND PROCEDURAL BACKGROUND
I.     Facts
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       Joseph Villareal and Patrick D., a minor, are cousins. One sunny afternoon in
early June 2015, they decide to ride their bikes through Grant Rea Park in Montebello.
       At one point, they walked their bikes. As they did, a man walked up to them,
blocked their path, and pointed a black pistol at Joseph. This first robber told Joseph and
Patrick to empty their pockets, and shoved Joseph to his knees. Two other men walked
up. Either the second or third robber “ripped” Joseph’s backpack off his back. The third
robber punched Patrick in the ribs, and the second robber went through Patrick’s pockets
The robbers took Joseph’s Samsung Galaxy cell phone, his iPod, his money, and his bike.
They took Patrick’s green iPhone and his bike.
       The first and second robbers rode off on Joseph’s and Patrick’s bikes. The third
robber shooed the cousins out of the park, pushing them from behind and telling them to
“keep on walking if you don’t want to die.” The third robber got into a truck and drove
away. Joseph remembered the license plate number.

1     The third codefendant is Edward Lopez Sr. (Lopez Sr.). He is Lopez Jr.’s father.
He was tried with his son and Mascorro, and also convicted of two counts of robbery.
His appeal is pending before us separately. (See B265350.)

2      Because Patrick D. is a minor, we refer to him by first name and, for consistency,
to Joseph by first name as well. We mean no disrespect.

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       After the third robber left, Joseph borrowed a phone and called 911. On that call,
Joseph described the first robber as tall, thin and bald; as being around 28 years old; and
as having a tattoo of some kind of writing on his chin.
       The next day, police interviewed Joseph and Patrick. Both described the first
robber as being a bald, thin Hispanic man in his late 20’s with tattoos on his arms as well
as one covering his chin. Both described the second robber as an Hispanic man with a
moustache wearing plaid shorts and a baseball cap with “LA” on the crown. Police
showed Joseph several six-photo photospreads, one containing Mascorro’s photo and
another containing Lopez Jr.’s; Joseph identified Lopez Jr. as the second robber but did
not identify Mascorro as being involved. Police also showed Patrick the photospreads;
Patrick identified Mascorro as the first robber, but did not identify Lopez Jr. as being
involved.
       Later that day, police went to the apartment to which the third robber’s truck was
registered. As they approached, the police saw a green iPhone, later identified as
Patrick’s, “fly” out of the window of an upstairs apartment. Inside that apartment were
Lopez Jr. and Lopez Sr., a black baseball cap with an “LA” logo on it, and a pair of plaid
shorts. Police transported Patrick to the scene of the arrest, and he identified Lopez Jr. as
the second robber.
       The next day, police arrested Mascorro as he stowed a black pistol matching the
general appearance of the one used in the robbery. Mascorro had Joseph’s Samsung
Galaxy iPhone in his pocket and Joseph’s bike at his apartment. Police thereafter
presented Joseph with a second six-photo photospread containing Mascorro’s photo;
Joseph identified him as the first robber.
II.    Procedural History
       The People charged Mascorro and Lopez Jr. with (1) the second-degree robbery
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(Pen. Code, § 211) of Patrick, and (2) the second-degree robbery (§ 211) of Joseph. As


3      Unless otherwise indicated, all further statutory references are to the Penal Code.

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to both crimes, the People further alleged that Mascorro personally used a firearm
(§ 12022.53, subd. (b)), and that a principal was armed during the robberies (§ 12022,
subd. (a)). The People additionally alleged Lopez Jr.’s three prior prison terms (§ 667.5,
subd. (b)).
       At the preliminary hearing on these charges, both Joseph and Patrick identified
Mascorro as the first robber and Lopez Jr. as the second robber.
       At trial, Joseph and Patrick again identified Mascorro as the first robber and Lopez
Jr. as the second robber.
       The jury convicted both defendants of the robberies and found true the firearm
enhancements. On Mascorro, the trial court imposed a 13-year prison sentence,
comprised of three years for the first robbery plus ten years for personal use of a
handgun; the court imposed a concurrent 13-year sentence on the second robbery. On
Lopez Jr., the court imposed a five-year prison sentence, comprised of five years on the
first robbery and a concurrent five-year sentence on the second robbery; the court struck
the firearm enhancement and prior prison term enhancements.
       Defendants timely appealed.
                                       DISCUSSION
I.     Jury instructions
       Defendants raise two instructional errors: (1) both defendants argue that the trial
court erred in instructing the jury on flight because there was insufficient evidence that
either of them fled; (2) Lopez Jr. contends that the trial court erred in denying his request
to instruct the jury on the crime of grand theft as a lesser-included offense to robbery.
We review instructional errors de novo. (People v. Quiroz (2013) 215 Cal.App.4th 65,
73.)



4      The People also charged Mascorro with two counts of possessing stolen property
(§ 496) and possessing a concealed firearm (§ 25400, subd. (a)(2)), and charged Lopez Jr.
with possessing stolen property (§ 496). The People dismissed the stolen property counts
against both defendants prior to trial, and the jury acquitted Mascorro of the concealed
firearm count.
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         A.      Instruction on flight
         A court may instruct the jury on the concept of flight “‘where the evidence shows
that [a] defendant departed the crime scene under circumstances suggesting that his
movement was motivated by consciousness of guilt.’” (People v. Cage (2015) 62 Cal.4th
256, 285, quoting People v. Bradford (1997) 14 Cal.4th 1005, 1055; § 1127c.) Here, the
trial court gave the standard flight instruction set forth in CALCRIM No. 372: “If the
defendant[s] fled immediately after the crime was committed, that conduct may show that
he was aware of his guilt. If you conclude that the defendant[s] fled, it is up to you to
decide the meaning and importance of that conduct. However, evidence that the
defendant[s] fled cannot prove guilt by itself.” (CALCRIM No. 372, italics added.)
         Defendants argue that (1) the instruction impermissibly dilutes the People’s
burden of proof, and (2) the factual predicate for giving this instruction is lacking because
their departure on the cousins’ bikes was not a circumstance indicating consciousness of
guilt.
         Defendants’ first argument has been rejected by our Supreme Court. (People v.
Carrasco (2014) 59 Cal.4th 924, 968 [“the instruction does not . . . lessen the
prosecutor’s burden of proof’”], quoting People v. Avila (2009) 46 Cal.4th 680, 710.)
We need not reach the merits of defendants’ second argument because the giving of the
flight instruction, even if unwarranted, was harmless beyond a reasonable doubt because
the instruction by its very terms only applies, as the italicized passage above indicates,
“if [the jury] conclude[s] that the defendant[s] fled.” “In the absence of any evidence of
flight after accusation,” our Supreme Court has noted, “the jury would have understood
that the instruction was to that extent inapplicable. The superfluous reference to
flight . . . caused defendant no prejudice.” (People v. Elliott (2012) 53 Cal.4th 535, 584;
People v. Visciotti (1992) 2 Cal.4th 1, 61 [finding erroneously giving a flight instruction
harmless because “the instruction did not assume that flight was established, leaving that
factual determination and its significance to the jury”].)




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       B.      Instruction on grand theft
       A trial court is required to instruct the jury on all lesser-included offenses to a
charged crime “‘if there is substantial evidence supporting a jury determination that the
defendant was in fact guilty only of the lesser offense[s].’” (People v. Rangel (2016) 62
Cal.4th 1192, 1225, quoting People v. Parson (2008) 44 Cal.4th 332, 348-349.) Grand
theft is a lesser-included offense to robbery; what differentiates them is that robbery
requires that the taking of property be effected by force or fear. (People v. DePriest
(2007) 42 Cal.4th 1, 50-51.)
       Lopez Jr. argues that there was substantial evidence that he was guilty only of
grand theft because he only removed Patrick’s backpack; it was Mascorro who was
holding Joseph and Patrick at gunpoint. Thus, Lopez Jr. reasons, he did not use any force
or fear and could have been viably convicted of grand theft. We disagree. Mascorro
undoubtedly used force or fear (e.g., People v. Burney (2009) 47 Cal.4th 203, 251 [“use
of a gun” is a “threat of force” “constitut[ing] robbery”]), and Lopez Jr. was one of the
trio of robbers who operated in a coordinated fashion to force the cousins’ submission by
having Mascorro hold them at gunpoint while the others searched their pockets and
belongings and took anything of value. Indeed, the jury was instructed on the concept of
aiding and abetting as to the robberies. On these facts, there was not substantial evidence
to support an instruction on the crime of grand theft.
II.    Expert Witness Testimony
       An expert may testify on any subject “that is sufficiently beyond common
experience that [the expert’s] opinion assists the trier of fact.” (Evid. Code, § 801,
subd. (a).) An expert’s opinion may “embrace[] the ultimate issue to be decided by the
trier of fact.” (Id., § 805.) Parties may pose hypothetical questions to experts, but only if
those questions are “rooted in the evidence of the case being tried.” (People v. Vang
(2011) 52 Cal.4th 1038, 1045 (Vang).) A “trial court has broad discretion to . . . exclude
cumulative or confusing expert testimony.” (People v. Stoll (1989) 49 Cal.3d 1136, 1159
fn. 20, citing Evid. Code, § 352.) We review a trial court’s evidentiary rulings for an
abuse of discretion (People v. Williams (2009) 170 Cal.App.4th 587, 618), and focus on

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the propriety of its ruling rather than the rationale for it (People v. Chism (2014) 58
Cal.4th 1266, 1295, fn. 12).
       In this case, the third codefendant (Lopez Sr.) called an eyewitness expert. This
expert testified at length about how people perceive, remember, and recall events in their
lives. He explained how perception is limited by a person’s “attentional capacity,” by his
“cognitive load,” by the duration of the event, by the trauma or stress he is under, and by
human beings’ “change blindness” (that is, the inability to perceive small changes in the
environment). The expert also opined that human memory is “malleable,” and that a
person will fill in missing details and even alter the details he does remember when
confronted with new, seemingly credible information. As a result of these phenomena,
the expert testified, a person’s recollection of an event can be purposely or inadvertently
contaminated by the procedures used to document that event (such as the procedures used
to collect eyewitness testimony) and by the tendency of the human mind to
“unconscious[ly] transfer[]” memories and not monitor where details came from. Thus,
the expert went on to state, eyewitness identifications can sometimes be inaccurate
because “picking faces is tough,” because eyewitnesses will sometimes choose the face
most similar to the perpetrator’s in a photospread, and because a stranger’s face may
become familiar due to seeing it in repeated photospreads. Fresher identifications are
better, he stated, because they are less likely to be contaminated. The expert provided
numerous everyday examples to illustrate these various concepts.
       The third codefendant’s lawyer asked the expert five hypothetical questions. All
of the questions were directed at attacking Patrick’s identification of Lopez Sr. as the
third robber from the first photospread because in that photospread Lopez Sr.’s
photograph was from when he was in his 30’s, whereas at the time of the robbery Lopez
Sr. was in his 50’s. The second and fourth questions asked the expert to assume the
existence of a fourth robber. The second and third questions asked the expert to assume
the police had made a “mistake” using Lopez Sr.’s outdated photo as a 30-year-old man
in a photospread. The first and fifth questions asked the expert whether a victim’s
description of the third robber right after the crime or at the preliminary hearing was

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likely to be more reliable. The trial court sustained objections to each of them as
“improper.” The court further explained that the questions involving a fourth robber did
not reflect “the state of the evidence”; that the questions “imput[ing] motives” to the
police were improper; and that the expert could not “testify to the ultimate fact.”
       Mascorro argues that the trial court’s rulings on these five questions
(1) improperly effected a “blanket ban” on all questions pertinent to the “ultimate issue”
of the accuracy of Patrick’s identification, in violation of Evidence Code section 805, and
(2) in any event prevented the expert from “bridging the gap” between the theoretical
concepts he was discussing and their practical application. We disagree.
       The trial court did not abuse its discretion in sustaining objections to these
questions. Contrary to what Mascorro suggests, there was no “blanket ban.” The court
did not purport to issue an all-purpose ruling; instead, it sustained five objections.
Indeed, the court later overruled an objection to a hypothetical question asked of this
witness. The court’s rulings were also within the court’s discretion on the merits. There
was no evidence suggesting the involvement of a fourth robber and no evidence
regarding the motive of the police in presenting multiple photospreads with Lopez Sr.’s
photo; thus, these questions were not “rooted in the evidence of the case being tried.”
(Vang, supra, 52 Cal.4th at p. 1046.) And the remaining two questions were nearly
indistinguishable from one another and were duplicative of the expert’s testimony that
descriptions soon after an event are more reliable. Because these rulings are sound on
these grounds, it does not matter whether the trial court’s reference to opinions
encompassing the ultimate fact as an alternative ground is correct. We also conclude that
the hypothetical questions were not necessary to “bridge the gap” between theory and
practice because the expert testified in plain English and gave numerous real-life
examples to illustrate his points.
       Any error in not allowing these five questions to be answered was also harmless as
to Mascorro. All five questions were aimed at casting doubt on Patrick’s identification of
Lopez Sr.; they did not mention Mascorro at all. The expert also noted that people are
generally pretty good at remembering key characteristics like race, length of their hair,

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facial hair, and “unique piercings, scars, [and] tattoos,” all of which “catch our attention.”
Here, Joseph and Patrick consistently referred to the first robber as bald and having a
tattoo on his chin, both of which accurately describe Mascorro. More to the point, the
evidence of Mascorro’s involvement in the robberies was overwhelming: Even apart
from the identifications, he had Joseph’s Samsung Galaxy phone and Joseph’s bike; and,
two days after the robbery, police watched him stow a black pistol like the one used in
               5
the robbery.
III.   Custody Credits and Sentencing
       A.          Mascorro’s custody credits
       The People note that there is a discrepancy between the number of days of good
conduct custody credits the trial court said Mascorro would receive during sentencing (40
days) and the number of days reflected in the minute order and abstract of judgment (41
days). Although the trial court’s oral pronouncement of sentence usually trumps (People
v. Jones (2012) 54 Cal.4th 1, 89 (Jones)), it does not do so where, as here, the oral
pronouncement rests on an arithmetic error (see People v. Duran (1998) 67 Cal.App.4th
267, 270 [appellate courts may correct errors in calculation]). Because Mascorro is
entitled to a number of days of good conduct custody credits equal to 15 percent of his
actual custody days (§§ 4019, 2900.5 & 2933.1), and because 15 percent of 279 (the
number of actual custody days) is 41, we will not disturb the abstract of judgment’s
award of 41 days of custody credit.
       B.          Lopez Jr.’s sentence
       The trial court pronounced that Lopez Jr.’s five-year sentence for the second
robbery was to run concurrently with the five-year sentence for the first robbery, but the
box on the abstract of judgment for “concurrent” sentences is unchecked. Lopez Jr.
argues that the abstract should be corrected; the People agree, and so do we. Because the



5     Because we conclude that Mascorro’s evidentiary and instructional challenges
lack merit, we have no need to address his argument that his convictions are infected by
cumulative error.
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oral pronouncement controls, the abstract must be corrected. (Jones, supra, 54 Cal.4th at
p. 89.)
                                       DISPOSITION
          The abstract of judgment is ordered amended to reflect that Lopez Jr. was
sentenced to five years each on two counts of second-degree robbery, to be served
concurrently. The superior court is ordered to forward the amended abstract of judgment
to the California Department of Corrections and Rehabilitation. In all other respects, 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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