People v. Reed CA2/6

Filed 12/23/14 P. v. Reed CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B252211 (Super. Ct. No. BA391200) Plaintiff and Respondent, (Los Angeles County)

v.

ERIC STEFON REED,

Defendant and Appellant.

Eric Stefon Reed appeals his conviction, by jury, of first degree murder in the shooting death of Felton Glass. An expert witness testified at trial about the psychological factors that influence eyewitness identifications. Appellant contends the trial court erred when it failed to instruct the jury, sua sponte, that expert testimony is a form of circumstantial evidence and that the interpretive principles governing the evaluation of circumstantial evidence apply with equal force to the evaluation of an expert witness' testimony. More specifically, appellant contends the trial court erred because it did not sua sponte instruct the jury that, if the expert testimony supported multiple reasonable inferences, one of which pointed to innocence and the other to guilt, the jury was obligated to accept the inference pointing to innocence. We affirm. Facts Appellant and 13-year old Javon Sullivan were both members of the "Western Loc Crips," a Los Angeles street gang. On November 21, members of the

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rival "Eight Trey Gangsters," shot at Sullivan as he was walking inside his own gang's territory. Sullivan wanted revenge. The next morning, November 22, Sullivan decided to go into Eight Trey Gangsters' territory to shoot one of them. Sullivan ran into appellant, a fellow gang member, at a liquor store. Sullivan told appellant what he wanted to do. Appellant agreed to go with him and lifted his shirt to show Sullivan the gun he had in the waistband of his pants. Appellant and Sullivan walked to a bus stop inside the Eight Trey territory, at the northwest corner of Western Avenue and Manchester Avenue, in Los Angeles. From there, they saw the victim, Felton Glass, standing near a bus stop on the opposite side of the street. Sullivan believed Glass was a member of Eight Trey because of the way he walked and because he was inside the Eight Trey territory. Appellant and Sullivan crossed the street. Appellant drew his gun and shot Glass several times. Glass fell to the ground. Sullivan shot Glass after he was down. After firing two shots, Sullivan ran away. One of the two guns used to shoot Glass was found in Sullivan's pocket when he was arrested about ten minutes later. When police officers first encountered Sullivan, he was using his cell phone to call appellant's cell phone. Sullivan called appellant's phone four times in the 10 minutes after the shooting occurred. Both phones were physically located within a few blocks of the shooting when those calls were made. In the statements he later gave to police, and in his trial testimony, Sullivan refused to identify appellant by name or appearance as his accomplice in the shooting. He referred to his accomplice as "DJ," without using DJ's given name. At the police station, however, Sullivan identified a photograph of appellant as DJ. Sullivan retracted that identification at trial, explaining he had been mad at appellant over a girl so he lied to implicate appellant in a murder. Appellant's stepfather, Thomas Butler, testified that appellant came home between 9:00 and 10:00 a.m. on the day of the shooting. Although appellant often wore his hair braided, on the day of the shooting it was unbraided and in a long, unruly "afro." Appellant also had a mustache and goatee. He asked Butler to cut his