P. v. Calderon

Filed 7/1/09 P. v. Calderon CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Luis A. Lavin, Judge. Affirmed.

Gene D. Voroboyov, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Philipe Calderon appeals his conviction for selling a controlled substance (Health & Saf. Code,  11352, subd. (a)) based upon the trial courts refusal to add his proposed language to CALCRIM No. 315. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Calderon was arrested for selling cocaine base to an undercover police officer during a daytime buy-bust operation. The buy officerthe officer who engaged in the transactionapproached a group of people gambling on the street in an area known for narcotics sales. There were approximately six people within the immediate area. She asked multiple times whether anyone was working, meaning whether anyone was selling drugs, but received no helpful responses. As she continued to walk, Calderon called her over and asked her how much she wanted. She said she needed $20 worth of narcotics, and Calderon instructed her to put her hand out. He spit an off-white solid into her palm. She paid him $20 in pre-recorded money, saw him take it, and walked away, immediately giving a predetermined signal to other officers as she did so. As she departed, she saw Calderon squat and return to gambling.

The buy officer described over her wire what Calderon was wearing and where he was. She described him as a single male, Black, wearing a dark blue shirt and a denim jacket, and identified his location by the street address. She kept looking back and giving the description until Calderon was detained; she saw him being detained within a minute or two of the transaction. The man detained was the same person who sold the narcotics to her, and she verified that in the field, from a photograph in the station, and at trial. The pre-recorded money was not recovered, nor did Calderon have any narcotics or narcotics paraphernalia in his possession. Calderon was in possession of $1.82 when arrested.

At trial, the buy officer denied that anyone else in the area was dressed the same way as the defendant, and said that it was absolutely not possible that the officers arrested the wrong person that day. The buy officer was able to identify the genders of the other people in the area of Calderon at the time of the transaction, but she was unable to describe their nationalities, their ages, or their clothing. A second officer testified that he watched the buy officer interact with Calderon and that he maintained visual contact with Calderon from that time until he was arrested.

Calderon testified that he was among the gamblers on the street at the time of the drug operation but that he was not the person who sold the cocaine base to the undercover officer.

Calderon was convicted of selling cocaine base. At a court trial on special allegations, the trial court found a series of enhancement allegations to be true. Calderon was sentenced to a total of eight years in prison.

DISCUSSION

Calderons sole argument on appeal is that the trial court should have added pinpoint language to CALCRIM No. 315. CALCRIM No. 315 is the general criminal jury instruction concerning eyewitness identification. It lists a series of questions jurors should consider in evaluating whether an eyewitness gave truthful and accurate testimony. Those questions include whether the witness knew or had contact with the defendant before the event; how well the witness could see the perpetrator; what circumstances affected the witnesss ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation; how closely the witness was paying attention; whether the witness was under stress when he or she made the observation; whether the witness gave a description, and if so, how that description compares to the defendant; how much time passed between the event and the time when the witness identified the defendant; whether the witness was asked to identify the perpetrator out of a group; whether the witness ever failed to identify the defendant; whether the witness ever changed his or her mind about the identification; what the witnesss degree of certainty was when the identification was made; whether the witness and the defendant are of different races; and whether any other circumstances affected the witnesss ability to make an accurate identification. (CALCRIM No. 315.)

All these factors were presented to the jury in the version of CALCRIM No. 315 that was given in closing instructions. Calderon complains that the court did not add an additional question listed in the jury instructions as optional language that should be given when requested and when factually appropriate: was the witness able to identify other participants in the crime? Calderon acknowledged to the trial court that the factor was not precisely factually appropriate because no one else was alleged to be a participant in the crime, but contended that because he was apprehended from among a group of people the jury should be asked to consider whether the witness was able to identify other individuals in the immediate vicinity or something of that nature.

The trial court declined to include this question in the jury instruction. The court explained, I dont think its applicable. As I indicated, the instruction talks about other participants. This is a crime with only one person involved. I think your request is essentially a request for a pinpoint instruction, which I dont think is appropriate. [] Youre certainly free to argue to the jury both interpreting [CALCRIM No.] 315 and just generally in your closing argument about all these other people that presumably were present that none of the officers could identify. But thats something thats open to you. But Im not going to give a specific instruction on that.

On appeal, Calderon contends that the trial court violated both state law and the Sixth and Fourteenth Amendments to the federal Constitution when it refused his proposed addition to CALCRIM No. 315. He argues that the additional language was a pinpoint instruction to which it was entitled because it pinpoint[ed] the crux of the defense and explain[ed] to the jury how to relate evidence of that defense to the prosecutions burden of proof.

For a pinpoint instruction to be appropriate, it must be accurate, non-argumentative, non-duplicative, and supported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 559.) In the context of identification instruction, defendants are entitled to special instructions that specifically direct the jurys attention to evidence in the record that support a defense theory of mistaken identity, so long as the instructions focus the jurys attention on the facts relevant to its determination of the existence of reasonable doubt regarding identification by listing in a neutral manner the relevant factors supported by the evidence at trial. (People v. Wright (1988) 45 Cal.3d 1126, 1141.)

As a factual matter, there were no others alleged to have participated in the crime, and as such, the bracketed language as included in CALCRIM No. 315 was not appropriate under the factual circumstances of this case. (People v. Dieguez (2001) 89 Cal.App.4th 266, 277 [trial court may decline to give a legally accurate instruction if it is not supported by the evidence].)

As to the closer question of whether the trial court should have given the proposed revision of the bracketed languagethe suggested factor of whether the witness could identify others in the vicinitywe conclude that we need not resolve this question, because even if the court erred in declining to incorporate the proposed language into CALCRIM No. 315, any error was harmless. Even when the trial court erroneously fails to give a requested instruction, reversal is not indicated unless we conclude, upon a review of the entire matter, that it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Wharton (1991) 53 Cal.3d 522, 571 (Wharton).) Here, we are not convinced that a more favorable result would have been reached if the requested instruction had been given. The cross-examination of the police witnesses coupled with Calderons counsels arguments adequately addressed the issue of the reliability of the identification. Moreover, the jury was instructed with CALCRIM No. 226, which states in pertinent part: In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. (Italics added.) Finally, the officer engaged in a transaction with Calderon, described him to the other officers, kept looking back as she walked away, and watched as he was apprehended within a very short time of the transaction. Her identification was also bolstered by the other officers testimony that Calderon was the only person in the group wearing a denim jacket and by the fact that this officer watched Calderon from the time of the transaction to the arrest. There was no reasonable probability of a different outcome here had the requested language been incorporated into CALCRIM No. 315.

We also disagree with Calderons argument that the alleged error was of constitutional magnitude. Calderon was permitted to argue and did contend in closing argument that the failure to identify others who were nearby demonstrated the unreliability of the identification and indicated that a mistaken identification may have been made. Any error with respect to this instruction was not constitutional in nature because the trial court did not instruct the jury that it could not consider the witnesss inability to identify others in the area. (Wharton, supra, 53 Cal.3d at p. 571, fn. 10 [no federal constitutional error in declining proposed pinpoint instruction when the instructions permitted the jury to consider the defense theory].) Contrary to Calderons contention, the failure to add the requested language to the instruction did not result in the complete withdrawal of the defense of mistaken identification from the jury. Counsel extensively argued mistaken identification to the jury; while CALCRIM Nos. 315 and 226 did not highlight the mistaken identity defense as Calderon would have liked, the instructions clearly contemplated the possibility of a mistaken identification and permitted counsel to argue it within the scope of the instructions given.

DISPOSITION

The judgment is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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