Filed 8/18/26 P. v. Morales CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B338317
(Super. Ct. No. 22CR01500)
Plaintiff and Respondent, (Santa Barbara County)
v.
DUSTIN DANIEL MORALES,
Defendant and Appellant.
Dustin Daniel Morales appeals from the judgment after a
jury convicted him of attempted murder of a peace officer (Pen.
Code,1 §§ 664, 187, subd. (a)), assault with a semiautomatic
firearm on a peace officer (§ 245, subd. (d)(2)), and carjacking
(§ 215, subd. (a)). The jury found firearms allegations true as to
the attempted murder and assault charges. (§§ 12022.5, subd.
(a), 12022.53, subds. (b) & (c).) The trial court found true two
strike priors and two serious felony allegations. It sentenced
appellant to 68 years to life, plus 50 years in state prison.
1 Unlabeled statutory cites are to the Penal Code.
Appellant contends the court erred by: (1) admitting
eyewitness testimony produced by an unduly suggestive
identification procedure; (2) instructing the jury on the assault
charge incorrectly; and (3) finding appellant’s prior convictions in
2011 and 2017 qualified as serious felonies under current law.
The Attorney General correctly concedes the third contention,
agreeing People v. Fletcher (2025) 18 Cal.5th 576 (Fletcher);
requires remand and retrial on the prior strike allegations. We
will otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Officer James Roach of the Santa Maria Police Department
responded to a domestic disturbance call at the River Ranch
Apartments in 2020. Officer Roach saw a man with distinctive
face and neck tattoos walking toward him as he entered the
courtyard. He recognized him as appellant, who was the subject
of a BOLO (be on the lookout) issued by the department that
morning.
Officer Roach grabbed appellant’s wrists and attempted to
arrest him. Appellant broke free, grabbed a concealed pistol from
his waistband with his right hand, and began running out of the
courtyard. He slipped on a wet patch of grass and fell forward.
Officer Roach pulled out his own pistol and ordered appellant to
stop. Appellant lifted his left hand in the air as if complying. He
then twisted his body toward the officer, fired a single shot in the
officer’s direction, stood up, and ran. Officer Roach refrained
from returning fire because bystanders were nearby. Detectives
later found a single 9mm bullet casing in the grass.
Appellant fled to a nearby auto parts store where he
commandeered a van at gunpoint from Carmelo Galvan and his
son Ramon Roldan. The California Highway Patrol arrested
2
appellant two days later after a high-speed freeway chase in the
San Fernando Valley. While appellant awaited trial in this case,
a Los Angeles jury convicted him of assaulting two peace officers
with a semiautomatic firearm, shooting from a moving vehicle,
and shooting at an occupied moving vehicle. (§§ 245, subd. (d)(2),
246, 26100, subd. (c).)
Roldan testified at trial as the only available eyewitness of
the carjacking.2 He stated he was reclining in the middle seat of
the van as his father began pulling out of the parking space. A
white male approached the driver’s side window with a pistol and
demanded his father get out. Roldan’s view was partially
obstructed, but he saw the right side of the suspect’s face for five
or ten seconds. He and his father got out and watched the
suspect reverse into a tree before driving away. Roldan pointed
at the defendant’s table from the witness stand and identified
appellant as the perpetrator.
Prosecutors introduced a six-pack photographic lineup with
Roldan’s signature placed next to appellant’s BOLO photo.
Roldan testified that officers showed him the lineup at the police
station soon after the crime. He recognized appellant “because of
the tattoo” on his neck. Roldan added that police showed the
same photo to him at the crime scene. This statement elicited an
objection from defense counsel. She said she would have moved
to exclude the “polluted” lineup from evidence had she known
Roldan saw the photo of appellant before seeing it at the police
station.
The disclosure surprised the prosecutor as well. He
responded that he believed only Roldan’s father saw the BOLO
2 Galvan lived in Mexico at the time of trial and was not
available to testify.
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photo at the crime scene. He offered to confer off the record with
the officer who spoke to Roldan and his father the day of the
crime. After a recess, he confirmed Roldan might indeed have
seen the BOLO photo at the crime scene because he was standing
“right next to his father” when the officer showed him. The
prosecutor stipulated to exclude the lineup from evidence. The
court immediately instructed jurors as follows: “Exhibit 23, the
photographic lineup, is going to be excluded from evidence. The
fact that the witness was shown a photograph of [appellant] prior
to the lineup renders it unreliable, so you’re not to consider that
for any purpose.”
The court held an Evidence Code section 402 hearing to
determine whether to exclude Roldan’s testimony as the product
of unduly suggestive identification procedures. It found Roldan
was a credible witness and had an independent basis to identify
appellant on the day of the crime and at trial. It denied
appellant’s mistrial motion but invited defense counsel to seek
curative jury instructions. The court later instructed the jury
that “[t]he Santa Maria Police Department failed to disclose
information that a police officer showed Ramon Roldan a
photograph of [appellant] at the scene prior to the photo line-up.
The People are responsible for making sure that evidence in
possession of the investigating law enforcement agency is
provided to the defense. [¶] In evaluating the weight and
significance of that evidence, you may consider the effect, if any,
of that late disclosure.” It also repeated its mid-trial instruction
to disregard the photographic lineup.
4
DISCUSSION
Eyewitness Identification of Appellant
By Carjacking Victim Roldan
Appellant contends police officers used unduly suggestive
procedures to identify him as the individual who carjacked
Roldan and his father. This included showing appellant’s BOLO
photo to Roldan immediately after the crime occurred and then
asking him to identify appellant in a lineup using the same
photo. Appellant argues that admitting this unreliable testimony
violated his due process rights. We disagree.
A defendant’s due process rights are violated when a
witness identifies them as the result of an unduly suggestive
procedure, and their identification is not otherwise reliable under
the totality of the circumstances. (People v. Clark (2016) 63
Cal.4th 522, 556.) A court must first determine if law
enforcement used a procedure that suggested the defendant’s
identity before the witness identified them. (People v. Ochoa
(1998) 19 Cal.4th 353, 413 (Ochoa).) If so, the court must then
determine if the identification was nonetheless reliable under the
totality of the circumstances. (Id. at p. 412.) Relevant factors
include the witness’s opportunity to view the suspect during the
offense, the witness’s degree of attention, the accuracy of the
prior description of the suspect, the witness’s level of certainty
when identifying the suspect, and the time elapsed between the
offense and the identification. (People v. Cunningham (2001)
25 Cal.4th 926, 989.)
The defendant bears the burden of demonstrating an
identification procedure was unduly suggestive or unreliable.
(People v. Avila (2009) 46 Cal.4th 680, 700.) On appeal, we
independently review the trial court’s determination on these
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points. (Id. at pp. 698-699.) “A claim that an identification
procedure was unduly suggestive raises a mixed question of law
and fact to which we apply a standard of independent review,
although we review the determination of historical facts
regarding the procedure under a deferential standard.” (People v.
Clark (2016) 63 Cal.4th 522, 556-557.) There is no violation of a
defendant’s due process rights if the procedure was not unduly
suggestive. (Ochoa, supra, 19 Cal.4th at p. 412.) We must
reverse if a due process violation is established unless the People
show the error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
“‘[S]ingle-person show-ups for purposes of in-field
identifications are encouraged, because the element of
suggestiveness inherent in the procedure is offset by the
reliability of an identification made while the events are fresh in
the witness’s mind, and because the interests of both the accused
and law enforcement are best served by an immediate
determination as to whether the correct person has been
apprehended. [Citation.] The law permits the use of in-field
identifications arising from single-person show-ups so long as the
procedures used are not so impermissibly suggestive as to give
rise to a substantial likelihood of misidentification.’” (People v.
Garcia (2016) 244 Cal.App.4th 1349, 1359, quoting In re Carlos
M. (1990) 220 Cal.App.3d 372, 387.)
Roldan testified the officer displayed a booking photo on his
phone and asked if he resembled the man who took their van
moments earlier. The record contains no evidence the officer
suggested appellant was the carjacking suspect, the subject of a
BOLO, or involved in a recent shooting. The department
instructed officers at that morning’s briefing to be on the lookout
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for appellant because he presented a safety risk, among other
reasons. Officer Roach had personally identified appellant as the
shooting suspect. Showing Roldan and his father the BOLO
photo was not unduly suggestive in this situation. Because
appellant fails to meet his burden of establishing that the
identification procedure employed here was unduly suggestive,
his arguments regarding the reliability of Roldan’s identifications
of him are moot. (See People v. Johnson (2010) 183 Cal.App.4th
253, 272.)
Even assuming the procedures were unduly suggestive,
Roldan’s initial identification was reliable under the totality of
the circumstances. He was seated in the van and could see the
right side of the suspect’s face for between five and ten seconds.
He testified appellant’s neck and face tattoos were distinctive,
particularly one that was red. He watched the suspect back the
van into a tree before driving off. The officer showed him the
photo of appellant within 30 minutes of the crime. Roldan
testified that his observations—not this photo—enabled him to
identify appellant at trial more than three years later. These
circumstances weigh in favor of the identification’s reliability.
(See People v. Kennedy (2005) 36 Cal.4th 595, 611, disapproved
on another point by People v. Williams (2010) 49 Cal.4th 405, 459
[defendant identified three weeks after crime by witness who had
observed the assailant from five to ten feet away as the crime was
being committed]; see also People v. Cunningham, supra, 25
Cal.4th at p. 990 [witness’s unequivocal identification of
defendant supported finding of reliability].)
In addition, the trial court twice instructed the jury to
disregard any evidence about the photo lineup because Roldan
saw a photo of appellant beforehand. It ensured this portion his
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testimony was struck from the transcript when the jury
requested a read back while deliberating. The jury also received
an eyewitness identification instruction, CALCRIM 315. It
directed them to consider several questions “when evaluating the
significance of [a] witness’s certainty in identification . . . .” This
included, “Did the witness receive information before or after the
identification that may have increased the witness’s level of
confidence?” and, “Did the police use procedures that increased
the witness’s level of confidence about the identification?” We
presume the jury followed these instructions. (People v. Franklin
(2016) 248 Cal.App.4th 938, 953.)
Jury Instructions on Assault Charges
The trial court instructed jurors as follows on the charge of
assault with a semiautomatic firearm on a peace officer (§ 245,
subd. (d)(2)): “To prove that the defendant is guilty of this crime,
the People must prove that: [¶] 1. The defendant did an act with
a semiautomatic firearm that by its nature would directly and
probably result in the application of force to a person . . . .” The
court defined “firearm” in a separate instruction3 but not
semiautomatic firearm. Appellant did not request this definition
below but contends the trial court should have done so sua
sponte. We review this contention de novo, considering the
challenged instructions in the context of the instructions and the
record as a whole “‘to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible
3 CALCRIM 3146 defined “firearm” as “any device designed
to be used as a weapon, from which a projectile is discharged or
expelled through a barrel by the force of an explosion or other
form of combustion.”
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manner.’” (People v. Rivera (2019) 7 Cal.5th 306, 326; People v.
Posey (2004) 32 Cal.4th 193, 218.)
Appellant argues “semiautomatic firearm” is a technical
term jurors needed defined to determine whether prosecutors
proved the elements of this offense. He notes the court could
have used the statutory definition at section 17140 (“a pistol with
an operating mode that uses the energy of the explosive in a fixed
cartridge to extract a fired cartridge and chamber a fresh
cartridge with each single pull of the trigger”) or similar
bracketed language suggested in CALCRIM 860 (“[a]
semiautomatic firearm extracts a fired cartridge and chambers a
fresh cartridge with each single pull of the trigger”).
The trial court’s sua sponte duty to instruct extended to
defining those terms “having a technical meaning peculiar to the
law. [Citations.]” (People v. Elam (2001) 91 Cal.App.4th 298,
306.) Appellant explains how the term is technical but not how it
is peculiar to the law. The dictionary definition of
“semiautomatic” in the context of firearms is, “able to fire
repeatedly through an automatic reloading process but requiring
release and another pressure of the trigger for each successive
shot.”4 The People elicited testimony from two police officers who
described appellant’s pistol as having these characteristics and
differentiated it from a revolver or fully automatic type. “When,
as here, a phrase ‘is commonly understood by those familiar with
the English language and is not used in a technical sense
peculiar to the law, the court is not required to give an
instruction as to its meaning in the absence of a request.’”
4 Merriam-Webster Dict. Online (2026) <http://www.
merriam-webster.com/dictionary/semiautomatic> (as of July 7,
2026).
9
(People v. Rowland (1992) 4 Cal.4th 238, 270-271, quoting People
v. Bonin (1988) 46 Cal.3d 659, 698.)
Strike Priors and Serious Felony Allegations
Appellant contends the true findings on two prior strike
allegations should be vacated pursuant to Fletcher, supra, 18
Cal.5th 576. The Attorney General correctly concedes remand is
required for a new trial on these allegations under current law.
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 699, § 1) amended section 186.22 by narrowing the definitions
of “‘criminal street gang,’” “‘pattern of criminal activity,’” and
“what it means for an offense to have commonly benefitted a
street gang.” (People v. Tran (2022) 13 Cal.5th 1169, 1206.)
After appellant filed his opening brief in this appeal, Fletcher
resolved a conflict of authority regarding whether prior
convictions with gang allegations are affected by these
amendments. The court concluded that “with regard to prior
convictions . . . that are premised on violations of section 186.22,
current law applies in determining whether they qualify as prior
serious felony convictions under section 1192.7, subdivision
(c)(28).” (Fletcher, supra, 18 Cal.5th at p. 587.)
Prosecutors alleged appellant had two serious prior strikes:
a 2011 conviction for assault by means of force likely to produce
great bodily injury (§ 245, subd. (a)(1)), and a 2017 conviction for
felon in possession of a firearm (§ 29800, subd. (a)(1)). They
alleged appellant committed the crimes for the benefit of a
criminal street gang. (§ 186.22, subd. (b)(1).) This made each a
serious felony. (§ 1192.7, subd. (c)(28).) The court admitted
seven exhibits during the bifurcated bench trial: a certified RAP
sheet, a section 969, subdivision (b) packet, and five “certified
priors.” This included plea forms for the 2011 and 2017
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convictions. Prosecutors noted the Los Angeles court found the
2011 and 2017 strike priors to be true. The trial court agreed and
imposed an additional 10-year prison term for each of the two
strike priors. Division Four of this Court later reversed the true
findings in the Los Angeles case. (People v. Morales (Apr. 25,
2025, B330828) [nonpub. opn.].)5
The record here shows appellant’s 2011 and 2017
convictions included gang enhancements, but “provide[s] no
information regarding the evidence used to obtain the convictions
or [appellant’s] underlying conduct.” (Fletcher, supra, 18 Cal.5th
at p. 606.) Neither conviction is considered a serious felony
within the meaning of section 1192.7 if not for the gang
enhancement. “[T]he current law applicable to this nonfinal
proceeding includes Assembly Bill 333’s redefinition of the
elements of gang offenses and enhancements under section
186.22. There is no indication that [the prior] conviction was
obtained under Assembly Bill 333’s more stringent requirements,
and the abstract[] of judgment . . . do[es] not alone prove the
elements of the alleged prior serious felony and strike prior
enhancements beyond a reasonable doubt. The appropriate
remedy is reversal of the findings on these enhancements for
retrial under the correct law.” (Fletcher, at p. 607)
5 Division Four concluded the packets failed to prove
appellant’s 2011 and 2017 convictions qualified as strikes under
People v. Renteria (2022) 13 Cal.5th 951, which requires
prosecutors seeking a gang enhancement to “show the defendant
acted on behalf of a gang rather than [solely] for personal
reasons.” (Id. at p. 968.)
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DISPOSITION
The true findings on the strike and the prior serious felony
enhancement are reversed pursuant to Fletcher, supra, 18
Cal.5th 576. Appellant’s sentence is vacated. The matter is
remanded for retrial on the prior serious felony and strike
convictions. (Fletcher, at pp. 607-608; People v. Watts (2006) 131
Cal.App.4th 589, 597-598.) If appellant is not timely retried
regarding the prior strikes (see § 1382, subd. (a)(2)) or one or both
of the prior strikes are not proven, the trial court shall resentence
appellant without the strikes. We also remand the matter for a
full resentencing. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED.
CODY, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Stephen Dunkle, Judge
Superior Court County of Santa Barbara
_________________________________
Jennifer A. Gambale, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield, Supervising
Deputy Attorney General, Christopher G. Sanchez and Chelsea
Zaragoza, Deputy Attorneys General, for Plaintiff and
Respondent.
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