JESSICA SALAZAR v. THE PEOPLE

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Court of Appeal, Second District, California.

JESSICA SALAZAR, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

B221036

Decided: February 18, 2010

Michael P. Judge, Public Defender, Albert J. Menaster, Delia Metoyer and Mark Harvis, Deputy Public Defenders for Petitioner. No appearance for Respondent. Steve Cooley, District Attorney, John K. Spillane, Chief Deputy District Attorney, Sharon J. Matsumoto, Assistant District Attorney, Phyllis C. Asayama and Jennifer C. McDonald, Deputy District Attorneys for Real Party in Interest.

OPINION AND ORDER

GRANTING PEREMPTORY

WRIT OF MANDATE

We hold that defendant Jessica Salazar has carried her burden to demonstrate that she is entitled to the appointment of an eyewitness expert at the expense of Los Angeles County.

FACTS

Salazar is the defendant in an underlying prosecution for carjacking (Pen.Code, § 215, subd. (a)), second degree robbery (Pen.Code, § 211) and receiving stolen property.  (Pen.Code, § 496, subd. (a).) 1

At the August 31, 2009 preliminary hearing, Michelle Ann Revell testified that, at about 1:30 a.m., on July 10, 2009, she was in her car in the parking lot of a bar, when two women approached her and demanded she get out of her car.   She refused and the women struck her and pulled her out.   They continued to push and strike her;  Revell blacked out when her head struck the pavement.   When she woke up the next morning, she found herself in the passenger seat of her car.

Revell discovered that her purse, containing her driver's license, bank card, and other cards, was missing.   Various items had been charged to her bank card.   When presented with a six-pack of photographs, Revell identified Salazar as one of her attackers.

Dellaina Alvarez Rivera, who worked at the bar, testified that she was an eyewitness to the commission of the offenses and identified Salazar in court.   She also testified that she had identified Salazar in a six-pack of photographs.

Officer Brett Record testified that, on August 8, 2009, he was called to a Wells Fargo Bank located in a Ralph's Market in Long Beach.   The officer searched the purse of a woman who had been detained.   The purse contained a Wells Fargo Bank card with Revell's name on it.   The officer identified Salazar in court as the woman he had searched.

Salazar's roommate and the daughter of her roommate testified that, on the night that the offenses were committed, Salazar was at home, with the doors secured by locks.   They further testified that Salazar was six months' pregnant and could not fit behind the steering wheel of a car.

Salazar moved for the appointment of an eyewitness expert at County expense.   The trial court denied the motion, stating, in part:  “The Defendant's ex parte request for appointment of an eyewitness identification expert is DENIED.   Such an expert is appropriate when eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability.  (People v. Jones (2003) 30 Cal.4th 1084, 1112) This testimony ‘will not often be needed.’  (People v. McDonald (1984) 37 Cal.3d 351, 377) In fact, the validity of such testimony has been questioned by the California Supreme Court.  (People v. Wright (1988) 45 Cal.3d 1126, 1142 fn. 13;  People v. Johnson (1993) 19 Cal.App.4th 778, 788[ ] ) [¶] ․ [¶] In this case, substantial corroboration of the eyewitness identifications is made by the following witnesses:  Michelle Revell testified at prelim that she was a victim of robbery that took place on or about July 10, 2009.   She testified that her vehicle was taken by force along with her purse that was underneath the driver's seat.   Ms. Revell identified a gold check card that was in her purse.  (People's # 1) She also identified defendant as a person who was involved in this robbery.  (PT, pg. 4, lines 8-14.)   Ms. Dellaina Alvarez also testified at prelim and indicated that she saw the defendant attack Ms. Michelle Revell and took her vehicle.   She identified the defendant in court (PT, pg. 28-29, lines 20-2).   Ms. Alvarez had previously identified the defendant as assailant from a photo show-up conducted by Detective Sandoval on August 12, 2009.   Officer Brett Record also testified at prelim and stated that on August 8, 2009, he went to the Ralph's supermarket to conduct a criminal investigation involving the defendant.   Officer Record indentified the defendant and stated that he recovered from her purse a gold check card with the name bearing Michelle Revell.  (People's # 1) In addition, no factors regarding mistaken eyewitness identifications have been suggested that are ‘not likely to be fully known to or understood by the jury.’   People v. Sandoval (1994) 30 Cal.App[.] 4th 1288, 1297;  People v. McDonald, supra, 37 Cal.3d at p. 377.” 2

DISCUSSION

“[A]n indigent defendant has specific statutory rights to certain court-ordered defense services at county expense;  that an indigent defendant has a constitutional right to other defense services, at county expense, as a necessary corollary of the right to effective assistance of counsel․”  (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 313.)  “Our courts have long recognized that the constitutional right to the effective assistance of counsel includes the right to ancillary experts.   The same courts have also acknowledged that, at the time application is made for the appointment of an expert at public expense, it is often difficult for counsel to demonstrate specific requirements.   As a result, trial courts are encouraged to view such requests with ‘considerable liberality.’ ”  (Doe v. Superior Court (1995) 39 Cal.App.4th 538, 543.)

Salazar has the burden to show that “the proffered expert testimony would have had significant probative value in [her] case.”  (People v. Goodwillie (2007) 147 Cal.App.4th 695, 725.)

In People v. McDonald (1984) 37 Cal.3d 351, 377, the Supreme Court concluded:  “[T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion;  ․ ‘we do not intend to “open the gates” to a flood of expert evidence on the subject.’  [Citation.]  We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court's discretion in this matter.   Yet deference is not abdication.   When an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability ․, it will ordinarily be error to exclude that testimony.”

Here, the two witnesses who identified Salazar as the attacker are the key elements of the prosecution's case.   While the discovery nearly one month later of Revell's bank card in Salazar's purse supports a charge of receiving stolen property, it is not such that it gives the two witnesses' testimony independent reliability as to the charges of carjacking and second degree robbery.

DISPOSITION

THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its November 20, 2009 order, denying the motion for the appointment of an eyewitness expert at the expense of Los Angeles County, and to issue a new and different order granting same, in Los Angeles Superior Court case No. NA082926, entitled The People v. Jessica Salazar.

NOT TO BE PUBLISHED

_ _

MALLANO, P.J. CHANEY, J. JOHNSON, J.

FOOTNOTES

FN1. The facts set forth are part of the public, redacted record..  FN1. The facts set forth are part of the public, redacted record.

FN2. This order was not requested to be sealed..  FN2. This order was not requested to be sealed.

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