People v. Smith CA1/2

Filed 7/29/16 P. v. Smith CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A144829 v. MITCHELL BERNARD SMITH, (San Francisco County Super. Ct. No. SCN221759) Defendant and Appellant.

Defendant was sentenced to state prison for an aggregate term of nine years after a jury found him guilty of felony second degree robbery and misdemeanor assault, and the trial court found true enhancement allegations concerning prior convictions. On this timely appeal, he presents one claim of erroneously admitted evidence, and two claims of instructional error. We conclude defendant’s contentions are without merit, and affirm. BACKGROUND On a November evening in 2013, Daniel Acevedo emerged from the Civic Center BART Station and began walking home through the Tenderloin district of San Francisco. He was carrying a laptop computer in a case and listening to music on the earphones of his iPhone, which was in his back pocket of his trousers. Sensing he was being followed, Acevedo turned suddenly and confronted defendant, a Black male whom he repeatedly and positively identified in court, and whose face he took pains to record in his memory. They grappled for possession of Acevedo’s iPhone. Acevedo observed three men across the street run over and join defendant in pummeling him.

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Eventually, possession of both the bag and the phone were gained by the attackers, who began walking towards the Civic Center BART Station. Within two minutes, Acevedo was at a nearby store, where he called police. Officers arrived at the store within minutes. Acevedo gave them information that allowed police to locate his iPhone. A description provided by Acevedo was broadcast by police. On the basis of broadcast, officers spotted and detained defendant, who was carrying Acevedo’s computer case, near the Civic Center BART station. Acevedo’s phone was discovered in the pocket of defendant’s jacket. Within 10 minutes of calling police, Acevedo was taken to look at a “suspect,” whom Acevedo identified as defendant, one of the persons who had robbed him. At the police station Acevedo identified the computer case and phone as his. REVIEW Chronologically, the first error identified by defendant is framed in his opening brief as follows: “The impermissibly suggestive cold show identification procedure resulted in insufficient evidence that the trial identification made was sufficient to support appellant’s convictions and violated appellant’s fourteen[th] amendment right to due process.” But testimony from defendant and then Officer James Horan concerning the identification, and the antecedent circumstances, of the field identification procedures, did not elicit an objection by the defense on the ground now advanced by defendant. Because of the absence of a timely and specific objection, the issue was not preserved for review. (Evid. Code, § 353, subd. (a); People v. Cunningham (2001) 25 Cal.4th 926, 989 [rule applied to identifications claimed to be impermissibly suggestive].) Defendant hopes to avoid this conclusion with the trial testimony of Dr. Geoffrey Loftus, whom defendant describes as “a well-known identification expert,” who “testified for the defense about the deficits of the cold show identification procedures and how eyewitness memory is effected by various factors.” Or, as defense asserts at another place, “Dr. Loftus clearly demonstrated the unreliability and bias of the pre-trial identification. Thus the contention that the pre-trial identification was unreliable and biased is properly before the court.” But Dr. Loftus could not testify on the constitutional