People v. Cabrera CA2/7 ( 2016 )

Filed 5/16/16 P. v. Cabrera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B259041
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA395649)
v.
MARCOS CABRERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J.
Hall, Judge. Affirmed.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stacy S. Schwartz and William
N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
INTRODUCTION
Marcos Cabrera, Oscar Flores, and Joyner Fernandez were prosecuted for robbing
a clothing warehouse and kidnapping an employee during the course of the robbery. The
jury could not reach a verdict as to Flores and acquitted Fernandez. The jury convicted
Cabrera of kidnapping to commit robbery (Pen. Code,1 § 209, subd. (b)(1)) and second
degree robbery (§ 211). The jury also found true allegations that Cabrera personally used
a firearm (§§ 12022, subd. (a)(1), 12022.5, 12022.53, subd. (b)) and stole property worth
more than $200,000 (§ 12022.6, subd. (a)(2)). The trial court sentenced him to state
prison for an indeterminate term of life with the possibility of parole and a determinate
term of 12 years. On appeal, Cabrera claims: (1) the evidence was insufficient to support
his conviction for kidnapping to commit robbery; (2) the prosecutor used an unduly
suggestive identification procedure during trial; and (3) the prosecutor committed
misconduct by coaching a witness to identify him. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. THE ROBBERY AND KIDNAPPING
Chiqle Denim, a manufacturer and wholesaler of jeans, has a warehouse and
design office in Los Angeles. On March 27, 2012, designer Hyunjin Kim returned to
work at the warehouse at 2:30 p.m. No one else was inside when she entered. Before she
could lock the door behind her, four men rushed inside. A “fat” Hispanic man wearing
“hip hop” style clothing and an orange jacket approached Kim, grabbed her, and put a
gun to her head. A taller Hispanic man with “Jordan shoes” then held a gun to the other
side of her head. Kim later identified Cabrera as the short, heavyset gunman and Flores
as the taller gunman. Kim could not identify the two other men who were with Cabrera
and Flores,2 because she did not see their faces.
1 All further statutory references are to the Penal Code.
2 Recognizing that Flores was not convicted in this case, we refer to him as the
second gunman only for ease of reference without intending to imply guilt on his part.
2
Frightened, Kim grabbed both guns that were pointed at her head. Cabrera had a
revolver that looked like it came “[f]rom an old Western movie”; Flores had a silver gun
that “looked more current.” The gunmen told her to close her eyes and remove her hands
from their guns, but she was so afraid she continued to hold onto them. They then struck
her in the head and arms with their fists and guns until she fell to the ground. Kim
begged them not to kill her. The gunmen repeatedly instructed her to close her eyes, but
she kept opening them out of fear.
The gunmen dragged Kim behind a nearby clothing rack, pushed her down onto
her stomach, and used tape to bind her legs and tie her hands behind her back. While she
was being tied up, Flores said, “Where’s the money?” She told him “this is a warehouse
and there’s no money here.” When he asked again, she repeated that there was no money
at the warehouse. Cabrera then used the tape to cover her mouth and threw a pair of
jeans over her eyes. Kim was crying and “thought [she] was going to die so [she] just
want[ed] to take a good look at these people.” She was able to see them through the legs
of the jeans draped over her head.
Subsequently, Cabrera placed Kim over his shoulder and carried her
approximately 22 feet to the owner’s office located in the back of the warehouse, where
he put her on the floor. While in the office, Kim was not visible from the front of the
warehouse. Cabrera left, but Flores stayed with Kim and kept his gun pointed at her
head. Almost immediately after being taken to the office, Kim heard a truck pull up to
the warehouse, the large shutter doors open, and a forklift move boxes inside the
warehouse. Fifteen or 20 minutes later, the shutters went down, and Flores left the office.
She next heard a few of the men talking in the front, followed by the sound of a door
opening and closing. Then it was quiet. Kim quickly loosened the tape binding her arms
and called 911 from the owner’s office.
B. THE ARREST OF THE SUSPECTS
Outside the warehouse, a police officer named Jorge Villaescusa made a traffic
stop of a Ford Explorer in the nearby area. The driver, Christian Tabares, was alone in
the vehicle (which was registered to Flores). While the officer was making the stop,
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Cabrera, Flores, and Fernandez exited Chiqle Denim. By this time, two other officers
had arrived to assist in the stop of the Ford Explorer. Officer Villaescusa directed one of
the officers to remain with Tabares while the other officer accompanied him to drive
toward the three men leaving the warehouse.
When the two officers approached the three men, they fled. As they were fleeing,
Kim emerged from the warehouse screaming that “five Mexicans . . . with guns had just
robbed her” and that one of them was wearing orange. The officer who had stayed with
Tabares communicated this information to Officer Villaescusa, who continued to pursue
the fleeing suspects and ordered them to stop. Flores and Fernandez complied, but
Cabrera continued to run until he was tackled by Officer Villaescusa. Officer Villaescusa
searched Cabrera and discovered an unloaded .357 revolver in his “crotch area.” In
addition, Cabrera had U.S. and Korean currency, two cameras, and a cell phone.
Ten or 15 minutes after the three men were arrested, Kim identified Cabrera and
Flores as the two men who had held guns to her head during the robbery. Cabrera was
wearing an orange sweatshirt or jacket. After the identification, the officers took Kim
inside the warehouse, where she noticed items missing from her purse, including Korean
currency and her cell phone. Also missing were boxes of merchandise that had filled the
room—worth more than $250,000— and two cameras and an iPad. Kim later identified
one of the cameras found on Cabrera as having been taken from the warehouse.
During their investigation, the police discovered Cabrera’s fingerprint on the
forklift inside the warehouse. They also found a roll of tape in the Explorer that was
similar to the tape used to bind Kim’s hands, legs, and mouth.
C. CABRERA’S TRIAL TESTIMONY
At trial, Cabrera admitted that he was in the Chiqle Denim warehouse, and that he
operated a forklift to help load boxes onto a truck. He testified, however, that he did so
as a day laborer hired by a man named “Cavé,” who had agreed to pay him $150 to load
the truck and clean the warehouse.
According to Cabrera, Flores had driven him to the warehouse along with
Fernandez, Tabares, and another man. They drove in the Ford Explorer that was later
4
stopped by the police. When they arrived, Cabrera saw a white truck backed up into the
warehouse through a large shutter door; and when he went inside, he saw four other men
but no woman. One of the four men inside the warehouse was “fat” with curly hair and
was wearing a large orange sweatshirt. A man whom Cabrera knew as “Poncho” told
him and the others what to do. Cabrera drove the forklift and moved boxes near the truck
for loading. He did not know what was inside the boxes. When all the boxes were
placed in the truck, he was told to go to the parking lot where the boss was parked so he
could be paid.
Cabrera left the warehouse with Flores and Fernandez soon after the white truck
was loaded with the boxes. As Cabrera was walking, Poncho retrieved a gun from the
truck and handed it to him. Poncho told Cabrera to give the gun to Cavé. When Cabrera
told Poncho he did not want the gun because he had never held one before, Poncho told
him not to worry because the gun was unloaded. Poncho then got into the truck and
drove off with three other men.
After explaining why he was carrying a gun, Cabrera addressed other
incriminating evidence found on him when he was arrested. Addressing the Korean
currency that appeared to have been taken from Kim’s purse, Cabrera explained that he
received that money when he worked part-time for Adriana Lee and her husband at a
clothing store. He collected Korean currency, and Ms. Lee had given it to him for good
luck. Addressing the two cameras that appeared to have been taken from the warehouse,
Cabrera admitted he had one of them on him but not the other. He had purchased the
camera earlier that day from another day laborer (whose name he did not know) and was
going to pay him $40 after he returned from the warehouse job.
In rebuttal, the prosecution called a detective who went to the address that Cabrera
had given for the clothing store where he worked. The detective testified that no such
business existed at or around the address given. Cabrera then called two witnesses in
surrebuttal who testified that Cabrera had worked for the Lees at the clothing store,
although the business had been closed for at least five years.
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DISCUSSION
A. THE CHALLENGE TO THE SUFFICIENCY OF THE ASPORTATION EVIDENCE
Cabrera contends that the evidence is insufficient to support his conviction for
kidnapping to commit robbery. In reviewing a challenge to the sufficiency of the
evidence, we examine the record in the light most favorable to the judgment and inquire
only whether the evidence is “‘“reasonable, credible and of solid value”’” such that a trier
of fact reasonably could find the defendant guilty beyond a reasonable doubt. (People v.
Nelson (2011) 51 Cal. 4th 198, 210.) Applying this standard, we reject Cabrera’s
contention, finding the evidence sufficient to support the asportation element of the
offense.3
1. The Two Prongs of Aggravated Kidnapping
Section 209, subdivision (b), provides that “[a]ny person who kidnaps or carries
away any individual to commit robbery” faces life in prison “if the movement of the
victim is beyond that merely incidental to the commission of, and increases the risk of
harm to the victim over and above that necessarily present in, the [robbery].” The two
prongs of this asportation requirement are related: whether the victim’s forced movement
was merely incidental to the robbery is “necessarily connected” to whether it increased
the risk of harm. (People v. Dominguez (2006) 39 Cal. 4th 1141, 1152 (Dominguez).) In
the final analysis, “[t]he essence of aggravated kidnapping is the increase in the risk of
harm to the victim caused by the forced movement.” (Ibid.) In measuring the risk, “each
case must be considered in the context of the totality of its circumstances.” (Ibid.)
3 Cabrera does not challenge the jury instruction given in this case, which required
the prosecution to prove that: Cabrera intended to commit robbery; he “took, held, or
detained [Kim] by using force or by instilling a reasonable fear”; and he moved Kim “a
substantial distance” “beyond that merely incidental to the commission of the robbery.”
The jury was further instructed: “As used here, substantial distance means more than a
slight or trivial distance. The movement must have increased the risk of physical or
psychological harm to the person beyond that necessarily present in the robbery. In
deciding whether the movement was sufficient, consider all the circumstances relating to
the movement.” (CALCRIM No. 1203.)
6
Under the “merely incidental” prong, courts look to “‘the “scope and nature” of
the movement.’” (Dominguez, supra, 39 Cal.4th at p. 1151, italics omitted.) The
distance of the movement is a factor, but only insofar as it bears on an evaluation of the
increased risk to the victim, taking into account “‘the context of the environment in
which the movement occurred.’” (Ibid., italics omitted.) “In some cases a shorter
distance may suffice in the presence of other factors, while in others a longer distance, in
the absence of other circumstances, may be found insufficient. For example, moving
robbery victims between six and 30 feet within their home or apartment [citation] or 15
feet from the teller area of a bank to its vault [citation] may be viewed as merely
incidental to the commission of the robbery and thus insufficient to satisfy the asportation
requirement of aggravated kidnapping. Yet, dragging a store clerk nine feet from the
front counter of a store to a small back room for the purpose of raping her [citation] or
forcibly moving a robbery victim 40 feet within a parking lot into a car [citation] might,
under the circumstances, substantially increase the risk of harm to the victim and thus
satisfy the asportation requirement.” (Id. at p. 1152.) Moreover, “the [mere] fact that the
movement of a robbery victim facilitates a robbery does not imply that the movement
was merely incidental to it.” (People v. James (2007) 148 Cal. App. 4th 446, 454.)
Under the increased risk prong, courts apply the factors identified in People v.
Rayford (1994) 9 Cal. 4th 1, 12. The Rayford factors include consideration of the
“decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts
to escape, and the attacker’s enhanced opportunity to commit additional crimes.” (Id. at
p. 13; accord, People v. Jones (1999) 75 Cal. App. 4th 616, 629.) “The fact that these
dangers do not in fact materialize does not, of course, mean that the risk of harm was not
increased.” (Rayford, supra, at p. 14; accord, People v. Vines (2011) 51 Cal. 4th 830,
871.)4
4 In 1997, the Legislature amended section 209, subdivision (b)(2), to remove the
word “substantially” from the phrase “‘substantially’ increase the risk of harm to the
victim.” (People v. Vines, supra, 51 Cal.4th at p. 869, fn. 20.) Cabrera nonetheless
argues that the “substantially increase” standard applies, citing Dominguez to show that
7
2. The Kidnapping Conviction in this Case
After entering the front door of the warehouse, Cabrera held a gun to Kim’s head
and then beat, gagged, and bound her. He covered her mouth and head with tape and hid
her behind a clothing rack with jeans thrown over her face. By this point, Cabrera and
his fellow robbers had full access to the area of the warehouse necessary to complete the
intended robbery—i.e., the front area where the merchandise was located. Nevertheless,
Cabrera tossed Kim over his shoulder and carried her 22 feet to the back office, where
she could not be seen from the front and where she was held with a gun at her head and
threats on her life for the next 15 or 20 minutes. These facts are sufficient to support the
jury’s finding that the prosecution had proven the two prongs of the asportation element
of aggravated kidnapping.
The movement of Kim to the back office was not “merely incidental to the
commission” of the robbery. Where, as here, the movement exceeds what is necessary
for the robbery, the first prong of the asportation requirement is satisfied. (People v.
James, supra, 148 Cal.App.4th at p. 455 [“Lack of necessity is a sufficient basis to
conclude a movement is not merely incidental”].) The purpose of the robbery was to
steal the merchandise located in the front of the warehouse where Kim was initially
detained. Cabrera did not move Kim to the back office either to steal property from that
location or to obtain an item from that location (e.g., keys to a vault) so that he could
steal property elsewhere in the warehouse. (Compare People v. Washington (2005) 127
Cal. App. 4th 290, 300 [“robbery of a business owner or employee includes the risk of
movement of the victim to the location of the valuables owned by the business that are
held on the business premises”].) Indeed, the robbers made no effort to search for or take
this standard survives the amendment. But that 2006 decision expressly declined to reach
the issue because the “defendant’s offense predated the amendment.” (Dominguez,
supra, 39 Cal.4th at p. 1150, fn. 5.) Other courts have reached the issue and concluded,
as we do here, that the standard applicable to crimes that post-date the amendment is the
modified standard. (See, e.g., People v. Robertson (2012) 208 Cal. App. 4th 965, 981
[legislative amendment changed the asportation standard from “substantially increased”
to “increased” the risk of harm].)
8
anything from the office.5 Therefore, substantial evidence supports the jury’s conclusion
that Cabrera’s forcible movement of Kim after she was immobilized, silenced, and
hidden from view was unnecessary to the taking of the boxed merchandise. (James,
supra, at p. 455 & fn. 6; see also People v. Corcoran (2006) 143 Cal. App. 4th 272, 279-
280 [movement of the victims had nothing to do with facilitating the taking of cash, and
seclusion of victims in the back office under threat of death was “clearly ‘excess and
gratuitous’”].)6
Citing People v. Daniels (1969) 71 Cal. 2d 1119 and In re Crumpton (1973) 9
Cal. 3d 463 (and cases cited therein), Cabrera argues that “a multitude” of California
Supreme Court cases have determined that movement within a building incidental to a
robbery is insufficient to support a conviction for kidnapping to commit robbery. To the
extent Cabrera is suggesting that an aggravated kidnapping can never occur by forcible
movements inside the location of a robbery, he is mistaken. (People v. Timmons (1971) 4
Cal. 3d 411, 415 [rejecting “a rigid ‘indoor-outdoor’ rule” by which moving a victim
inside the premises in which he is found is never sufficient asportation].) Indeed, the
Supreme Court has rejected that interpretation of Daniels and the other cases Cabrera
cites. (See People v. Vines, supra, 51 Cal. 4th 830.) In Vines, the defendant forcibly
moved a restaurant manager to the restaurant’s safe, and ordered him at gunpoint to open
it. The defendant then walked the manager from the safe to the back of the restaurant
where he found three other employees and directed all four downstairs to the basement
5 While Kim was in the back office, Flores did continue to ask her if there was
money in the warehouse. There was no evidence, however, that Kim was moved to the
office for purposes of obtaining money there.
6 According to Cabrera, the robbers had no choice but to bind, gag, and move Kim
to commit the robbery. While Cabrera was free to make this argument to the jury, the
applicable standard of review precludes us from second-guessing the jury’s contrary
conclusion. The facts of this case permitted the jury to find that the forcible movement to
the back office—after Kim already had been secured—was an unnecessary part of the
robbery.
9
freezer where he locked them inside. (Id. at p. 871.) Although the defendant’s forcible
movement of the victims was limited to movement inside the premises, the court
concluded: “Under these circumstances, we cannot say the ‘scope and nature’ of this
movement was ‘merely incidental’ to the commission of the robbery.” (Ibid.; accord,
People v. Corcoran, supra, 143 Cal.App.4th at pp. 278-279.)
Cabrera also argues that the short distance of the movement from the front to the
back of the warehouse (i.e., 22 feet) was not substantial enough to allow the jury to find
asportation. As discussed, the concept of asportation is not measured in distance alone.
(People v. Vines, supra, 51 Cal.4th at p. 870.) A distance as little as nine feet may be
sufficient. (See, e.g., People v. Shadden (2001) 93 Cal. App. 4th 164, 167 [punching,
grabbing, and dragging a video store owner nine feet to the back room deemed
sufficient].) More significant than the distance traveled is the nature of the movement.
Moving Kim from a large, open space in the front of the warehouse to a small, relatively
closed space in the back of the warehouse reasonably could be construed as a potentially
dangerous change in environment. (See id. at p. 169 [jury reasonably could find that
going from open area to a closed room nine feet away materially changed the rape
victim’s environment].)
Turning to the next prong, we conclude that the evidence was sufficient to find
that the movement increased the risk of harm to Kim. Cabrera moved Kim from the front
of the warehouse, which was visible from the front door, to a more secluded area in the
back. Kim was extremely vulnerable there, as she was bound, gagged, and held at
gunpoint. In this situation, there was a risk of further victimization and other harm. (See
Dominguez, supra, 39 Cal.4th at p. 1152 [risk factors include whether movement
“enhances the attacker’s opportunity to commit additional crimes”]; People v. Lara
(1974) 12 Cal. 3d 903, 908, fn. 4 [risk factors “include not only desperate attempts by the
victim to extricate himself but also unforeseen intervention by third parties”].) The risk
was heightened by the fact that the robbers already had “demonstrated [a] willingness to
be violent” by brutally beating Kim with a gun minutes earlier. (People v. Jones, supra,
75 Cal.App.4th at p. 630 [“An increased risk of harm was manifested by [the] appellant’s
10
demonstrated willingness to be violent, having knocked [the victim] to the ground,
gripped her mouth so tightly as to leave a burn mark on her face, and grabbed for her as
she fled the car”].) These circumstances also increased the risk of psychological harm to
Kim. (See People v. Nguyen (2000) 22 Cal. 4th 872, 886 [finding that the “increase in the
risk of psychological trauma to the victim beyond that to be expected from a stationary
robbery” can satisfy the asportation requirement].) Thus, we reject Cabrera’s argument
that the only reasonable interpretation of the facts is that he reduced—rather than
increased—the risk of harm by moving Kim to the back office.
B. THE CLAIM OF AN UNDULY SUGGESTIVE IDENTIFICATION PROCEDURE
Cabrera next argues that the prosecution violated his due process rights by using
an unduly suggestive identification procedure during trial—namely, by showing Kim
photographs of defendants (taken on the day of their arrest) after she had made an in-
court identification that differed from the one she made on the day of the arrest.
1. The Relevant Facts
Ten to 15 minutes after arresting Cabrera, Flores, and Fernandez for robbery,
police officers drove Kim to a nearby location where the three men were being detained.
As Kim remained seated in the patrol car, an officer brought each suspect within five to
10 feet of her. When Kim saw Cabrera, she immediately started to scream and cry. She
identified him as one of the men who had held a gun to her head and described him that
day as the short, heavyset man wearing orange.7 Kim then identified Flores as the other
gunman, whom she described that day as the taller man wearing Jordan tennis shoes.8
7 Citing one officer’s reference to Cabrera’s jacket as red, Cabrera argues he “was
wearing a red jacket, not orange hip-hop clothing so he was not the suspect who moved
Kim.” This argument overlooks the substantial evidence supporting Kim’s observation,
including the testimony of other officers who described Cabrera as wearing an “orange”
or “reddish orange” jacket or sweatshirt. Moreover, the jurors saw photographs of
Cabrera when he was arrested, which allowed them to independently assess the accuracy
of Kim’s clothing description and identification.
8 Kim was not able to identify Fernandez when he was next brought forward.
11
Kim made the same identifications of Cabrera and Flores at the preliminary hearing one
year later.
More than two years after the robbery, Kim testified at trial. By that time,
Cabrera’s appearance had changed. Cabrera—who stood 5 feet, 5 inches tall—had lost
about 100 pounds and looked “extremely skinny.” In addition, he had changed his hair
style and shaved his goatee. During Kim’s first day of testimony, she was unable to
identify Cabrera. Instead of identifying Cabrera as the “fat” man wearing orange
clothing, she identified Flores as that person; and instead of identifying Flores as the tall
person wearing Jordan tennis shoes, she identified Fernandez as that person. Kim
testified, however, that she previously had identified the two gunmen within 10 to 15
minutes of the robbery when their faces were “fresh in [her] mind.”
The next morning, before trial resumed, the prosecutor and a detective met with
Kim and an interpreter. The prosecutor showed Kim the four photographs the police had
taken of Cabrera, Flores, Fernandez, and Tabares on the day of the robbery. The
prosecutor did not explain why she was showing Kim the photographs, nor did she tell
Kim that she had “misidentified” anyone the previous day at trial. Rather, the prosecutor
asked only if Kim recognized anyone in the photographs. Kim immediately picked up
the photographs of Cabrera and Flores and identified them as the two men who had
pointed the guns at her during the robbery.
When Kim’s direct examination continued later that day, she identified Cabrera
from the photographs as the man wearing orange who had tied her up and carried her into
the back office and Flores as the taller man wearing Jordan tennis shoes. Kim testified
she had been confused when testifying the prior day, but after looking at Cabrera’s
photograph taken on the day of his arrest, “[she] knew it was him.”
2. Legal Analysis
Cabrera argues that reversal is required because the prosecutor used an unduly
suggestive and unreliable identification procedure that violated his right to due process of
law as set forth in Manson v. Brathwaite (1977) 432 U.S. 98, 104-107 [97 S. Ct. 2243, 53
12
L. Ed. 2d 140]. (Accord, People v. Cunningham (2001) 25 Cal. 4th 926, 990.) We
disagree.
Even if we assume that Cabrera did not forfeit the argument by failing to object,
his claim fails on the merits. A due process challenge to the admission of identification
evidence requires a defendant to show not only that the identification procedure was
“unduly suggestive and unnecessary,” but also that identification itself was unreliable
under the totality of the circumstances. (People v. Cunningham, supra, 25 Cal.4th at
p. 989.) Those circumstances include “the opportunity of the witness to view the suspect
at the time of the offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty demonstrated
at the time of the identification, and the lapse of time between the offense and the
identification.” (Ibid.)
In challenging the identification procedure as being unduly suggestive, Cabrera
argues that “[t]he photos were shown in an unregulated manner outside the courtroom
where defense counsel was unable to observe or object.” However, Cabrera cites no
authority for the proposition that he was entitled to have counsel present during the
prosecutor’s preparation of a trial witness. Even if the prosecutor’s trial preparation
could be construed as a photographic lineup, Cabrera had no Sixth Amendment right to
counsel at that meeting. (People v. Virgil (2011) 51 Cal. 4th 1210, 1250 [photographic
lineup is not a critical stage of the prosecution].)
Nor has Cabrera cited any authority suggesting that the prosecutor was precluded
from showing Kim the photographs before asking her about them at trial. Kim had
identified Cabrera twice after the robbery, and Cabrera’s appearance had changed
substantially since that time. When Kim was unable to identify Cabrera in court, the
prosecutor was clearly allowed to show her a photograph of Cabrera taken on the day of
the robbery to determine whether she could identify the person as he looked that day.
(People v. Alexander (2010) 49 Cal. 4th 846, 903.) In these circumstances, there was no
legal barrier to asking Kim about the photograph before trial. (Ibid.) As the court
reasoned upon addressing a similar claim in Alexander: “We are unaware of any
13
authority that suggests that, had the prosecution waited until [the witness] was on the
witness stand to show him the photographs, and had [the witness] made the same
identifications, such a procedure would be subject to a constitutional challenge. Rather,
in such circumstances, [the] defendant would have explored the reliability of the
identifications on cross-examination. Here, the prosecutors showed [the witness] the
exhibits the night before trial to learn what he would say about them before asking him in
front of the jury. This was not an unduly suggestive and unnecessary procedure under the
facts of this case, and we therefore need not evaluate the reliability of the identification.”
(Ibid.) We reach the same conclusion here.
C. THE PROSECUTORIAL MISCONDUCT CLAIM
Relying on the same facts used to claim an unduly suggestive identification
procedure, Cabrera argues the prosecutor committed misconduct by improperly coaching
Kim to identify him as one of the gunmen. For the reasons discussed above, even if we
assume the issue has been preserved for appeal, the prosecutor’s conduct did not amount
to misconduct. (See People v. Alexander, supra, 49 Cal.4th at pp. 901-903.)
DISPOSITION
The judgment is affirmed.
BLUMENFELD, J.*
We concur:
ZELON, Acting P. J. SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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