People v. Mendez CA2/8

Filed 11/7/13 P. v. Mendez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B245874

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA390747) v.

RAYMUNDO MENDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Gail Ruderman Feuer, Judge. Affirmed.

Helen Simkins Irza, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Raymundo Mendez was convicted of assault with personal use of a firearm. The chief defense was mistaken identity. Three eyewitnesses identified defendant as the assailant. One eyewitness said defendant was wearing a blue shirt with no vest or jacket at the time of the assault. When defendant was stopped by police a few minutes later, he was wearing a jacket. Another eyewitness said defendant was wearing a blue shirt and a vest, and an investigating officer noted in her report defendant was wearing a vest. The only claimed error on appeal is the court erred in allowing the arresting officer, who was called as a defense witness, to testify on cross-examination that it is common for people who commit gun crimes to change clothes after the crime and discard the gun. Defendant argues this evidence was irrelevant and inherently prejudicial “profile” evidence. Defendant waived this claim by failing to object at trial on the ground the evidence was irrelevant or prejudicial. In any event, we find no merit to the claimed error. Courts have condemned the prosecution’s use of expert testimony to describe the method and means of a particular type of criminal to commit a particular type of crime as evidence that, since the charged crime shares the same or similar characteristics, the defendant must also be guilty of committing the same crime. The brief cross-examination of the arresting officer in this case does not come close to falling within this prohibited category of profile evidence. BACKGROUND The three eyewitnesses were Jose Sanchez, Jessica Mendoza and Christian Maldonado. Sanchez drove Mendoza and Maldonado into the parking area of the Oasis Hotel after an evening at a local club. Maldonado got out and approached the reception office to inquire about getting a room while Sanchez and Mendoza waited in the car. The parking lot was well lit. Three men in the parking lot followed Maldonado as he approached the office and knocked on the door. There was no response, and Sanchez called to Maldonado to get back in the car. The men followed Maldonado back to the car. After Maldonado got into the front passenger seat, one of the men standing near the passenger side door indicated