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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nick Robert PLASENCIA, Defendant and Appellant.

Cr. 39995.

Decided: March 16, 1983

Mary J. Madsen, Ventura, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab, Jane M. Began, Deputy Attys. Gen., for plaintiff and respondent.

After trial by jury on a six count information, defendant Nick Plasencia, Jr. was found guilty of robbery (Pen.Code, § 211), attempted robbery (Pen.Code, §§ 664/211), and assault with a deadly weapon (Pen.Code, § 245(a)).   In an act of leniency, execution of sentence was suspended and defendant was placed on five years formal probation upon certain terms and conditions, among them that he spend six days in county jail.   Defendant appeals from the order granting probation.   We affirm.

The convictions stem from the unprovoked attack on four off-duty and unarmed security guards by a marauding group known as the Diamond Street Gang.   We note here that the sufficiency of the evidence is not in dispute.

At about 11:00 p.m., on the night of November 1, 1979, Alfred Blechman and a friend, Carlos Luna, had just finished work at the Bank of America's data processing center in downtown Los Angeles and were proceeding to a bus stop at the corner of Temple and Beaudry.   Already waiting for them at that location was a mutual friend, Magidy Salib.   As the three talked and waited, they were joined by yet another co-worker, Larry Jacques, when he pulled up to the curb in his car.   More conversation ensued.

Without notice or warning a group of approximately eight persons ran from across the street, surrounded the four men in a loose circle, and demanded their money.   The gang, rapidly growing in size to well over twenty persons, became increasingly hostile.   Using a knife, one in the group slashed two of the tires on Jacques' car.   Others circled around Luna and made a demand at knifepoint for his money.   Repeating that he had no cash, Luna stepped backwards and threw an athletic bag he was carrying onto the ground.   In the scurry that followed, he turned and ran in the direction of the bank building.   Although several in the gang took up pursuit, Luna was able to avoid capture.

Blechman reached the safety of Jacques' car and the two men drove to the bank to summon help.   Salib, left to fend for himself, was beaten, kicked, and eventually stabbed by the mob.   Upon seeing their remaining victims scatter, the gang began to disperse.   With help on the way, both Jacques and Luna briefly returned to the scene, spotted one of their attackers and chased him to a nearby market.   After recognizing several others involved in the assault, the men returned to the bank.   Luna later recovered his athletic bag, but found that the keys to his home and some clothes were missing.

During a subsequent investigation by the Los Angeles Police Department, defendant was identified by several of the victims as a participant in the attack.   In Mirandized statements and confessions obtained from fellow gang members Mario Monforte and Manuel Chavez, defendant was further implicated in both the assault and robbery.

At trial the defense was alibi.   During a hearing outside the presence of the jury, defendant sought to introduce the purported expert testimony of Dr. Robert Shomer, a psychologist, concerning the inaccuracy of eyewitness identification.   As part of its offer of proof, the defense submitted a 27 page document summarizing the nature of Dr. Shomer's research and delineating the ways in which it is possible for witnesses to be subjectively positive in their identification and yet be in error.   The trial court also heard extensive testimony as to the doctor's qualifications.   Although the court expressed its familiarity with Dr. Shomer's work, it concluded that evidence of the type proffered by the defense had not yet reached a state of acceptability in the legal community and therefore could not be used at trial.

In rejecting the proffered evidence, the court made it clear that while Dr. Shomer was a highly qualified and respected psychologist, the subject matter about which he sought to testify was too conjectural and too speculative to support any opinion he would offer.1

Based upon the foregoing we find no abuse of discretion in prohibiting defendant's expert from testifying before the jury.

In Witherspoon v. Superior Court (1982) 133 Cal.App.3d 24, 183 Cal.Rptr. 615, we examined some of the general legal principles codified in California's Evidence Code relating to the admission of expert testimony.   We noted there that “the rules of evidence are essentially rules of exclusion rather than admissibility.   All relevant evidence is admissible unless there is a positive rule of evidence which excludes it.  [Citation.]  ․ A trial court has discretion after a weighing process to exclude as ‘immaterial’ otherwise relevant evidence which is deemed to be inordinately time consuming or prejudicial when compared to its probative value (Evid.Code, § 352).   Further, the Evidence Code contains specific exclusion for evidence which, for policy reasons or for lack of reliability, are considered ‘incompetent’ to prove any particular issue ․”  (Id. at p. 30, 183 Cal.Rptr. 615.)

Evidence Code section 801 contains two fundamental limitations on the use of opinion testimony by an expert witness.   That section provides:  “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:  (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;  and (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

 It has long been held that conjectural and speculative matters may not “be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.”  (Evid.Code, § 801, subd. (b).)  The reason for such a rule is clear.   Speculative opinions are inherently unreliable and have little, if any, tendency in reason to prove a disputed fact in issue.  (Evid.Code, § 210;  People v. De La Plane (1979) 88 Cal.App.3d 223, 242–243, 151 Cal.Rptr. 843.)   Because of the esoteric nature of most expert testimony, appellate courts have traditionally given wide latitude to trial courts in determining whether the matters relied upon in the formulation of opinions are too conjectural to be probative.  (Cf. People v. Clark (1980) 109 Cal.App.3d 88, 167 Cal.Rptr. 51;  Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382, 164 Cal.Rptr. 343;  People v. Guthreau (1980) 102 Cal.App.3d 436, 162 Cal.Rptr. 376.)

 Defendant's attempt to introduce expert testimony to prove the inaccuracy of eyewitness identification is nothing new.   For the most part, however, the appellate courts of this state have upheld the exclusion of such testimony on the grounds of unreliability and relevancy.  (See People v. Brooks (1975) 51 Cal.App.3d 602, 605, 608–609, 124 Cal.Rptr. 492;  People v. Bradley (1981) 115 Cal.App.3d 744, 751, 171 Cal.Rptr. 487;  People v. Guzman (1975) 47 Cal.App.3d 380, 385, 121 Cal.Rptr. 69;  People v. Johnson (1974) 38 Cal.App.3d 1, 7, 112 Cal.Rptr. 834.)

Since our society has not reached the point where all human conduct is videotaped for later replay, resolution of disputes in our court system depends almost entirely on the testimony of witnesses who recount their observations of a myriad of events.

These events include matters in both the criminal and civil areas of the law.   The accuracy of a witness' testimony of course depends on factors which are as variable and complex as human nature itself.

The law has recognized the possibility of inadvertent as well as intentional error in a witness' testimony and in some cases, where it was felt necessary, protective rules have been adopted.   For example, the possibility that the spoken word may be misinterpreted or misremembered prompted the enactment of Penal Code sections 1103a and 1110 requiring the testimony of two witnesses or one witness and corroborating circumstances to support a conviction of perjury or theft by false pretenses.

Further a jury in a criminal case must be instructed to view with caution the testimony of a witness who purports to recite an oral admission or confession of a defendant.  (CALJIC Nos. 2.70 and 2.71.)

The requirement that the testimony of an accomplice be corroborated (Pen.Code, § 1111) exists because of the recognized danger of the possible motivation of an accomplice to testify falsely.

Other such prophylactic rules are numerous.   The Legislature, however, has not seen fit to adopt any such rule in regard to eyewitness identification.   The cornerstone of our system remains our belief in the wisdom and integrity of the jury system and the ability of twelve jurors to determine the accuracy of witnesses' testimony.   That system has served us well.  (See In re Miguel L. (1982) 32 Cal.3d 100, 185 Cal.Rptr. 120, 649 P.2d 703.)

 Recently we have been told, however, by a small group of so-called “experts” attempting on the basis of “empirical” data to elevate one small area of human behavior into a “science” of its own, to wit, the phenomenon of one individual recognizing another individual—that so-called “eyewitness” testimony should no longer be relied upon.

 Reduced to its simplest terms that is all to which Dr. Shomer would have testified.   The offer of proof here was simply a highly embellished document which said nothing more than that people can be mistaken in identifying other individuals as persons they had seen before.   The proffered testimony did not purport to deal with any particular witness' ability to be accurate or for that matter with anything beyond common experience.

It takes no expert to tell us that for various reasons people can be mistaken about identity, or even the exact details of an observed event.   Yet to present these commonly accepted and known facts in the form of an expert opinion, which opinion does nothing more than generally question the validity of one form of traditionally accepted evidence, would exaggerate the significance of that testimony and give a “scientific aura” to a very unscientific matter.

The fact remains, in spite of the universally recognized fallibility of human beings, persons do, on many occasions, correctly identify individuals.   Evidence that under contrived test conditions, or even in real life situations, certain persons totally unconnected with this case, have been mistaken in their identity of individuals is no more relevant than evidence that in other cases, witnesses totally unconnected with this case, have lied.

It seems beyond question that the identifications in this case were correct.   We find no abuse of discretion in the trial court's rejecting the proffered testimony.2

Defendant further argues that his conviction should be reversed on the ground that the admission into evidence of certain prior inconsistent statements identifying him as a participant in the attack and robbery violated his right to confront witnesses under Article I, section 15 of the California Constitution.3  We briefly set forth the pertinent facts giving rise to this contention.

During late November and early December of 1979, both Mario Monforte and Manuel Chavez were arrested by police investigators for their involvement in the gang related attack.   After voluntarily waiving their Miranda rights, both named defendant, also known as “Little Puppet,” as a member of the Diamond Street Gang and placed him at the scene of the crime.   At trial, however, Monforte was called as a witness for the prosecution and testified that he could remember only three of the participants, none of whom was defendant.   He further claimed that he left the scene before the gang swept down upon its four victims and thus did not observe the actual attack.   Monforte also indicated that he had lied to the arresting officers when he told them that he remembered “where the group from the bank got jumped.”   Over defense objection, the district attorney was permitted to introduce both the statements made by Monforte on the night of his arrest and his subsequent photo identification of defendant.

Chavez, also called to the stand by the prosecution, denied being at the scene altogether, maintained that any information he had given the police was coerced, and that, in any event, he was unable to recall most of the statements he had made while in custody.   Again, over timely objection, the People were allowed to introduce the witness' pretrial admissions.4

Relying upon Evidence Code sections 770 and 1235 5 the trial court held that the prior inconsistent statements of both witnesses were admissible.   Defendant contends, however, that since Monforte and Chavez either denied being present at the scene of the attack or were unable to remember their pretrial statements, he was prevented from adequately cross-examining his accusers.

 The fundamental requirement for admissibility of a prior statement of a witness, whether used to attack credibility or to prove the truth of the facts asserted in the statement, is that the out of court statement be inconsistent with some portion of the witnesses' current testimony.   In People v. Green (1971) 3 Cal.3d 981, 92 Cal.Rptr. 494, 479 P.2d 998, our Supreme Court dealt with the issue of whether prior statements could be introduced when the witnesses' in-court testimony consists primarily of evasive answers and lapses of memory.   The court concluded that “[i]nconsistency in effect, rather than contradiction in express terms, is the best test for admitting a witness' prior statement.  [Citation.].”  (Id. at p. 988, 92 Cal.Rptr. 494, 479 P.2d 998.)

 Even a cursory review of the record in the instant case makes clear that the in-court testimony of both Monforte and Chavez was inconsistent with their prior statements linking defendant with the gang's activities on the night of November 1, 1979.   Moreover, the combination of evasive denials and “I don't remember” answers were sufficient to establish what may be termed “implied” inconsistencies.  (Cf. People v. Green, supra, at pp. 988–989, 92 Cal.Rptr. 494, 479 P.2d 998.)

The fact that both witnesses denied making all or even a portion of their prior statements did not render the evidence inadmissible.   This was not a case where the answers elicited from the witness stand were based solely on a lack of recollection.  (Cf. People v. Sam (1969) 71 Cal.2d 194, 77 Cal.Rptr. 804, 454 P.2d 700.)   The reluctance of both Monforte and Chavez to testify against defendant was readily apparent, as it was necessary for the trial judge to repeatedly warn them to make their voices more audible.   Subsequent testimony established that neither witness was willing to corroborate any prior statement that would implicate a fellow gang member.   Although the memories of the witnesses faltered when asked if they recalled the details of the attack or the statements given to the investigating officers, both were able to recount in detail the allegedly coercive tactics of the police and that they were nowhere near the scene when the crime occurred.

We find nothing in the record that impaired defendant's ability to confront and cross-examine either witness.   Through vigorous questioning by defense counsel, the discrepancies in their accounts of the crime were fully explored and explanations offered.   Both claimed that they had been forced to sign their statements under duress.   While Monforte asserted that he had been threatened with deportation, Chavez maintained that he had been pushed around and told that if he didn't cooperate his teeth would be knocked out.   Under the circumstances, the jury was given more than an adequate opportunity to observe their demeanor and assess credibility.   Accordingly, the prior statements of both witnesses were properly admitted into evidence.

 We next consider defendant's argument that the trial court committed reversible error when it instructed the jury that “gang membership alone does not establish guilt.”   Although agreeing that some instruction on this issue was necessary, defendant maintains that the language employed by the court allowed the jury to convict on the basis of guilt by association.   In support of his position, defendant refers us to several recent decisions in which criminal convictions were reversed because of the possibility of irrelevant and impermissible inferences being drawn from evidence of gang membership.  (See People v. Cardenas (1982) 31 Cal.3d 897, 904–906, 184 Cal.Rptr. 165, 647 P.2d 569;  People v. Perez (1981) 114 Cal.App.3d 470, 477, 170 Cal.Rptr. 619;  In re Wing Y. (1977) 67 Cal.App.3d 69, 79, 136 Cal.Rptr. 390.)   Defendant's reliance on these cases is misplaced.

In the instant case, unlike Cardenas, Perez, or Wing Y., gang membership was an integral and unavoidable fact relevant to identity, bias and motive.  “[I]t has repeatedly been held that it is proper to introduce evidence which is even unpleasant or negative pertaining to an organization in issue which is relevant on the issue of motive or the subject matter at trial.”  (People v. Frausto (1982) 135 Cal.App.3d 129, 140, 185 Cal.Rptr. 314.)   Here, the evidence introduced logically and naturally aided the prosecution in rebutting the presumption of innocence and showing a reason for defendant's criminal behavior.   In turn, the defense was able to use the issue of gang association to establish that the crimes charged in the information were committed not by defendant but by other hard-core members.  (Cf. People v. Dominguez (1981) 121 Cal.App.3d 481, 498–499, 175 Cal.Rptr. 445.)

 Although gang membership may have a significant number of unsavory connotations in present day society, defendant was not being tried for his mere association with Diamond Street members.   The instruction offered by the trial court made this clear.   Our review of the record convinces us that there was no real danger that the jury would improperly infer that defendant had a criminal disposition simply because he was associated with a youth gang.   We further note that defendant's proposed instruction differed only slightly from the one actually read to the jury.6

The court's specially prepared instruction, in conjunction with CALJIC No. 2.00 (circumstantial evidence), CALJIC No. 2.20 (credibility of witnesses), CALJIC No. 2.22 (weighing conflicting testimony), and CALJIC No. 2.90 (presumption of innocence/burden of proof), guaranteed that the jury was fully instructed on the “general principles of law relevant to the issues raised by the evidence.”  (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913.)

 Defendant was fairly tried.   Any error which may have occurred during trial was harmless beyond any doubt and no different result would be probable on a retrial.   We are bound therefore to affirm.  (People v. Laster (1971) 18 Cal.App.3d 381, 96 Cal.Rptr. 108;  Cal. Const., Art. I, § 13.)

The judgment (order granting probation) is affirmed.


1.   The court expressed its ruling in the following manner:  “․ I am not questioning anything about his ability as a psychologist at all․  [T]here are not sufficient standards in this matter and I still am not sure what a, quote, eyewitness identification expert is, and I feel there has not been a sufficient showing as to that ․”

2.   We further note that the trial court instructed the jury pursuant to CALJIC No. 2.91.   That instruction provides:  “The burden is on the State to prove beyond a reasonable doubt that defendant is a person who committed the offense with which he is charged.   You must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant as the person who committed the offense before you convict him.   If, from the circumstances of the identification, you have a reasonable doubt whether defendant was the person who committed the offense, you must give the defendant the benefit of that doubt and find him not guilty.”   This statement more than adequately permitted the jury to draw its own conclusions concerning the accuracy of defendant's identification by the prosecution's witnesses.   This is especially true in light of the fact that several of the victims had difficulty in making an in-court identification of defendant.

3.   Article I, section 15 provides in relevant part:  “The defendant in a criminal case has the right to a speedy public trial, to compel attendance of witnesses in the defendant's behalf, to have the assistance of counsel for the defendant's defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant.”  (Emphasis added.)

4.   A third witness, Lorenzo Nava, also suffered from a deficient memory but did not implicate defendant, either at trial or prior thereto.   Accordingly, we find it unnecessary to discuss any of the contentions relating to Nava's prior inconsistent statements.

5.   Evidence Code section 770 provides:  “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:  (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement;  or (b) The witness has not been excused from giving further testimony in the action.”Evidence Code section 1235 provides:  “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”

6.   Defendant asked that the following instruction be given:  “Membership in a gang or group is not evidence of guilt, and may be considered by you only for the purpose of evaluating the credibility of witnesses and the identification process utilized in this case.”

 COMPTON, Acting Presiding Justice.

BEACH and GATES, JJ., concur.