P. v. Torres

Filed 6/14/07 P. v. Torres 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERTO TORRES,
Defendant and Appellant.
B190227
(Los Angeles County
Super. Ct. No. BA285923)
APPEAL from a judgment of the Superior Court of Los Angeles County. Judith
Champagne, Judge. Affirmed.
Rodney Richard Jones, under appointment by the Court of Appeal, for Defendant
and Appellant
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B.
Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________________

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A jury convicted Roberto Torres of being a felon in possession of a firearm and
the trial court selected the upper term of punishment. The issues on appeal are whether
the trial court erred in excluding evidence intended to show someone else had been the
person in possession of the gun and whether the court erred by imposing the upper term
based on facts not found by the jury beyond a reasonable doubt.1
We conclude the trial
court’s evidentiary rulings do not warrant a new trial and the court did not err in imposing
the upper term sentence.
FACTS AND PROCEEDINGS BELOW
Officer Alfred Garcia testified he and his partner were on patrol in their police
cruiser shortly after midnight when they received a call regarding a group of young men
gathered in front of a house. Driving to the location the officers came upon five young
male Hispanics standing on the sidewalk. Garcia shined the car’s spotlight on the group
and continued driving in their direction. His view of the group was unobstructed. When
he was approximately 15 feet away Garica saw a blue steel gun in the waistband of a man
he later identified as defendant Torres. As the officers drew nearer Torres grabbed the
pistol from his waistband and tossed it onto the sidewalk after which he and the other
men started running in different directions. Garcia picked up the gun and called for
backup. He then joined his partner who was already chasing Torres and two other men.
Officer Berdin, Garcia’s partner, corroborated Garcia’s testimony. He too testified
he observed five young Hispanics “loitering” in front of a house and saw Torres remove a
gun from his waistband before throwing it on the ground.
Torres, David C. and another minor who had been in the group were apprehended
approximately five minutes later and taken to the local police station.
1
Cunningham v. California (2007) 549 U.S. ____, 127 S.Ct. 856.

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At some point after Torres’ arrest the officers determined he was on parole and
booked him for being a felon in possession of a firearm. They released David C. and the
other minor.
A jury convicted Torres on one count of possession of a firearm by a felon. The
trial court sentenced him to the upper term of three years doubled under the three strikes
law plus a one year prior prison term enhancement. Torres filed a timely appeal.
DISCUSSION
I. THE TRIAL COURT’S EVIDENTIARY RULINGS DO NOT
WARRANT A NEW TRIAL.
Torres’ defense was mistaken identity. In order to raise a reaonable doubt about
his guilt Torres attempted to weaken Garcia’s and Berdin’s indentification testimony and
to show another member of the group, the minor David C., had admitted to a friend it was
he who tossed away the gun when the police approached.
A. The Trial Court Did Not Err In Limiting Torres’ Cross-
Examination Of The Officers On The Issue Of
Identification.
Torres attempted to undermine the identification testimony of Garcia and Berdin
by raising an inference they only focused on Torres after they learned he was an adult on
parole and all the others in the group were minors.
Defense counsel established through Garcia that when the officers got to the police
station they determined the two suspects arrested along with Torres were minors. But,
when counsel sought to question Garcia about Torres’ parole status the trial court
disallowed this line of questioning.
“[Defense counsel]: You also did a check on Mr. Torres’ background; is that
right?”
“[Prosecutor]: Objection, relevance.”

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“[Defense counsel]: It goes to bias, your honor, motive.”
“The court: Sustained. It’s already happened. He’s already there.”
***
“[Defense counsel]: Sir, you were informed that Mr. Torres is on parole; isn’t that
right?”
“[Prosecutor]: Objection, your honor, relevance.”
“The court: Sustained.”
“[Defense counsel]: You didn’t know about Mr. Torres’ status before you placed
him in the police vehicle?”
“[Prosecutor]: Your honor, may we approach with the same objection again?”
“The court: Objection is sustained.”
Outside the presence of the jury defense counsel argued the officers’ knowledge of
Torres’ parole status was relevant “to show possible motive, bias, fabrication of their
report [and] in their testimony in court today.” It was the defense theory, counsel
explained, the officers did not make a positive identification of Torres as the person with
the gun until they arrived at the police station and discovered he was an adult on parole
and the other two individuals were minors. Based on this information, the defense
theorized, the officers decided to pin the weapon charge on Torres and let the minors go.
After listening to defense counsel’s explanation the trial court stood by its ruling
excluding questions about the officers’ knowledge concerning Torres’ parole status.
Torres contends the trial court’s rulings violated his rights to due process of law
and to confront the witnesses against him.
It is beyond dispute a fair trial requires reasonable latitude in cross-examination.2
Such leeway is especially important in cross-examining law enforcement officers
because, as our Supreme Court has candidly observed, triers of fact “generally believe the
testimony of such persons rather than that of the accused[.]”3
This does not mean,
2
Alford v. United States (1931) 282 U.S. 687, 691.
3
People v. Beardslee (1991) 53 Cal.3d 68, 110.

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however, the right of cross-examination has no limits. As the United States and
California Supreme Courts have repeatedly recognized, the Confrontation Clause is not
violated when a trial judge excludes evidence which is unduly prejudicial, confusing or,
as in the present case, “‘“only marginally relevant.”’”4
Here, Torres argues, evidence the officers knew about his parole status before they
released the minors would permit the jury to infer the officers decided to pin possession
of the gun on Torres because he had already proved himself to be a “bad guy” and they
wanted to give the minors a break. Torres’ argument misses the distinction between
reasonable inference and speculation.
An “inference” is “a deduction of fact that may logically and reasonably be drawn
from another fact or group of facts found or otherwise established in the action.”5
“Speculation,”on the other hand, can be defined in this context as “reasoning or
theorizing about a matter that transcends experience and does not admit of
demonstration.”6
For example, a defendant cannot be convicted of burglary solely on the
basis of proof his fingerprint was found on an object in the house but he can be convicted
on the basis of a witness’s testimony she saw the defendant carrying a television set out
of the house while the owners were away. In the first instance the jury would not have
enough evidence to convict the defendant without speculating there could be no innocent
explanation of how his fingerprint happened to be in the house. In the second instance
the jury would have enough evidence to convict without speculating because it can
reasonably infer from the evidence a witness saw the defendant carrying a television set
out of a house when the owners were not home the defendant was stealing the television.7
4
Holmes v. South Carolina (2006) 547 U.S. 319, ___, 126 S.Ct. 1727, 1732; accord
People v. Ayala (2000) 23 Cal.4th 225, 301.
5
Evidence Code section 600, subdivision (b).
6
Webster’s New International Dictionary (2002) at page 2189.
7
See Nesson, The Evidence Or The Event? On Judicial Proof And The
Acceptabililty Of Verdicts (1985) 98 Harv. L. Rev. 1357, 1373. As Professor Nesson
acknowledges, inferences do not always lead to the correct conclusion—the witness in
our example may be mistaken or lying—and speculation does not always lead to the

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In the present case, even if the evidence established Garcia and Berdin knew about
Torres’ parole status before they released the minors no rational juror could logically or
reasonably deduce from this evidence alone bias led the officers to lie in their
identification and pick Torres as the person who had possessed the gun. Life experience
does not teach that law enforcement officers would behave in this way and there was no
evidence Garcia and Berdin behaved in this way. It is not error to exclude evidence “that
has only a very weak logical connection to the central issues.”8
B. The Trial Court Erred In Excluding David C.’S
Admission He Was The One Who Possessed The Gun
But The Error Was Harmless.
After David C. asserted his Fifth Amendment right not to incriminate himself, the
defense called Veronica Carreno to testify to statements David made to her in which he
admitted he, not Torres, was the person with the gun. In a 402 hearing Carreno testified
she was Torres’ ex-girlfriend. They broke up about a month before the gun incident.
According to Carreno, between two weeks and a month after Torres’ arrest she received a
telephone call from David C., one of the minors arrested with Torres. David told Carreno
he was with “friends” and “they dropped a gun . . . one night” while they were running
from the police. Carreno testified David knew Torres had been arrested on account of the
gun and “he felt that bad. He didn’t know what to do because they had got—arrested
somebody else when he was the one that had dropped the gun.” Torres argued the
evidence of David C.’s statements to Carreno was admissible under the hearsay exception
for declarations against penal interest.9
incorrect conclusion—the fingerprint may be in the house because the defendant left it
there while stealing the T.V. set. Nevertheless a reasonable trier of fact is justified in
rejecting the fingerprint evidence and accepting the eyewitness evidence because the
former raises doubts which the evidence is incapable of resolving while the eyewitness
evidence raises doubts the evidence can accommodate. (Id. at pp. 1373-1374.)
8
Holmes v. South Carolina, supra, 126 S.Ct. at page 1734.
9
Evidence Code section 1230.

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The trial court disallowed this evidence on the ground neither it nor Carreno, who
provided it, were credible. “The court finds the statement as described by Ms. Carreno is
ambiguous, lacking in detail. Her testimony was fraught with inconsistencies. She is one
of the least compelling witnesses I have seen. She would not speak up no matter how
much counsel and the court asked her to use the microphone and talk in an audible
manner. She was ordered back at 10:15 and its now 11:00. . . . I am finding the
circumstances surrounding the giving of the statement are so lacking and untrustworthy
of her reliability that it is inadmissible for the purposes for which the evidence was
proffered.”
We review the trial court’s decision for abuse of discretion.10
Insofar as the court excluded David C.’s statements because it doubted Carreno’s
credibility it clearly erred. Our Supreme Court has held that in determining the
admissibility of a declaration against penal interest “unless the testimony is physically
impossible or its falsity is apparent ‘without resorting to inferences or deductions’. . .
doubts about the credibility of the in-court witness should be left for the jury’s
resolution.”11
The court also erred in excluding David C.’s purported admission he was the
person in possession of the gun on the grounds the statement was “ambiguous,” “lacking
in detail,” and “untrustworthy.” Here, the trial court apparently accepted the
prosecution’s argument the statement was not a true declaration against penal interest
because it was too vague as to time and place and David might just have been trying to do
Torres a favor knowing there was little chance he himself would be prosecuted12
and,
10
People v. Brown (2003) 31 Cal.4th 518, 536.
11
People v. Cudjo (1993) 6 Cal.4th 585, 608-609.
12
Under Evidence Code section 1230 a declaration against penal interest is
admissible if it “so far subjected [the declarant] to the risk of . . . criminal liability . . . that
a reasonable man in his position would not have made the statement unless he believed it
to be true.”

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even if he was, his punishment would be substatially less than Torres might receive.13
Taken in context, however, it is clear David’s statement as related by Carreno referred to
the incident which resulted in the gun possession charge against Torres. As to the
trustworthiness of the statement: David made it a few weeks after the incident and well
before Torres’ preliminary hearing, he did not go to the police even though Carreno
urged him to but he did assert the Fifth Amendment when called as a witness at Torres’
trial. In addition, David made his statement in what several courts have described as “the
most reliable circumstance”—a conversation “between friends in a noncoercive setting
that fosters uninhibited disclosures.”14
Finally, our Supreme Court has taken the view any
doubts about the admissibility of relevant evidence of third party culpability should be
resolved in favor of its admission reasoning “‘if the evidence is really of no appreciable
value no harm is done in admitting it; but if the evidence is in truth calculated to cause
the jury to doubt, the court should not attempt to decide for the jury that this doubt is
purely speculative and fantastic but should afford the accused every opportunity to create
that doubt.’”15
Although we hold the court abused its discretion in barring Torres’ evidence of
third party culpability we conclude the error was harmless because it is not reasonably
probable the jury would have reached a result more favorable to Torres in the absence of
the error.16
13
Generally possession of a concealable weapon by a minor is punished as a
misdemeanor. (Pen. Code § 12101, subd. (c)(2).
14
People v. Greenberger (1997) 58 Cal.App.4th 298, 335. In contrast there was no
evidence David was a “particular friend” of Torres “and thus had a motive to lie.”
(People v. Cudjo, supra, 6 Cal.4th at page 613.)
15
People v. Hall (1986) 41 Cal.3d 826, 834, quoting 1A Wigmore, Evidence (Tillers
rev. ed. 1980) § 139, p. 1724 (holding trial court abused its discretion in excluding
evidence of third party culpability under Evidence Code section 352).
16
The Watson test for prejudice applies to errors in excluding evidence of third party
culpability (People v. Hall, supra, 41 Cal.3d at page 836) and declarations against penal
interest (People v. Cudjo, supra, 6 Cal.4th at page 612).

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The jury heard the testimony of two police officers who unhesitatingly identified
Torres as the man they saw remove a gun from his waistband, throw it on the sidewalk
and run away. If the officers had only testified they saw Torres toss the gun away the
outcome might be different. Torres was standing in a group with four other young
Hispanics all between the ages of 18 and 21, it was nighttime and, even though the
officers shined their high beams and spotlights on the group, the men were standing next
to two large trees which may have cast shadows on the scene. Under those circumstances
a juror could have a reasonable doubt the officers were able to identify which of the
young men had actually tossed the gun. But here the evidence shows both officers
focused their attention on Torres as soon as they spotted the group because he was
wearing a white tank top and looking in their direction while the other four men were
dressed in dark clothing and looking in other directions. While their attention was
focused on Torres both officers saw him pull a gun from his waistband. They then saw
him throw the gun on the sidewalk and flee.
In addition, the credibility factors which could not properly be used to determine
the admissibility of David C.’s statements through Carreno can be properly used in
assessing the prejudice to the defendant from excluding them.17
Although Carreno was
Torres’ “ex” girlfriend they appear to have been on good terms since Carreno testified
she invited Torres to visit her and he was on his way to her house when he was arrested.
The record contains no evidence of the relationship between David C. and Torres but a
reasonable juror could infer they too were friends because they were “loitering” together
in front of a house and ran away together from the police. Thus both Carreno and David
C. had a possible bias in favor of Torres. Carreno’s testimony was suspect for other
reasons. A reasonable juror might find it suspicious David would choose to confess his
guilt to Carreno, with whom he had only a “hi” and “bye” relationship instead of
Carreno’s brother who, she testified, was more David’s friend. A reasonable juror might
17
People v. Cudjo, supra, 6 Cal.4th at pages 608, 613 (reliability of hearsay
witness’s testimony erroneously considered in excluding testimony but properly
considered in determining harmless error.)

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also notice Carreno had no difficulty remembering David told her he was the one who
threw away the gun but she had great difficulty remembering anything else David told
her or when their conversation took place.
Given these circumstances the chance a reasonable juror would give Carreno’s
testimony significant weight seems remote. Accordingly, we find it is not reasonably
probable admission of Carreno’s testimony would have affected the outcome of Torres’
trial.
C. Torres’ Remaining Evidentiary Issues Are Without Merit.
Torres alleges other errors in the exclusion of evidence. None of his claims have
merit.
The number of times Berdin had testified, how many arrests he had made, and
whether he was aware he could be held civilly liable for wrongful arrest were beyond the
scope of direct examination and irrelevant to any issue in the case including Berdin’s
credibility. Evidence Berdin did not mention Torres’ tattoo at the preliminary hearing
was irrelevant because Berdin was never asked at the preliminary hearing about a tattoo
on Torres. The description of the men in front of the house which Garcia and Berdin
received while on patrol was irrelevant to any issue in the case.
III. THE TRIAL COURT DID NOT COMMIT “CUNNINGHAM
ERROR” IN SENTENCING TORRES TO THE UPPER
TERM.
In Cunningham v. California the United States Supreme Court reiterated the view
it expressed in Apprendi v. New Jersey18
and other cases “the Federal Constitution’s jury-
trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence
above the statutory maxim based on a fact, other than a prior conviction, not found by a
18
Apprendi v. New Jersey (2000) 530 U.S. 466.

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jury or admitted by the defendant.”19
Applying this rule to California’s determinate
sentencing law the court held the law violates the defendant’s Sixth Amendment right to
a jury trial to the extent it permits the imposition of an upper term sentence based “on
facts found discretely and solely by the judge.”20
Torres argues such a violation occurred
here. We disagree.
In sentencing Torres to the upper term for possession of a firearm by a felon the
court stated it “select[ed] the upper term because the defendant was on parole at the time
of the instant offense [and] his conduct in the intance [sic] offense clearly demonstrates
that his performance on parole was totally unsatisfactory.” The court went on to say:
“Looking at the circumstances in aggravation, this is the defendant’s third felony as an
adult. He suffered an adjudication for three counts of robbery as a juvenile. He involved
young people in this offense. He ran from the police putting others at risk creating the
potential for great bodily injury.” After defense counsel, in an effort to protect the
record,21
objected to the trial court’s use of aggravating factors not found by the jury, such
as “involving young people in the offense” and “creating a risk of great bodily injury,”
the court responded: “As I indicated and as I think the record clearly reflects, there are
numerous circumstances in aggravation, not only the ones that you are complaining the
jury didn’t specifically decide in a verdict form, but rather implicitly by their verdict. He
was on parole. He had been released [from prison] five months before this event. His
performance on parole was obviously unsatisfactory as evidenced by his conduct in this
case. These are all factors that the court may consider, above and beyond looking at the
threat that is part of the conduct and implicitly found by the jury.”
19
Cunningham v. California, supra, 127 S.Ct. at page 860.
20
Cunningham v. California, supra, 127 S.Ct at page 868.
21
At the time of Torres’ sentencing trial courts were bound by our Supreme Court’s
opinion in People v. Black (2005) 35 Cal.4th 1238, upholding California’s determinate
sentencing law against a Sixth Amendment Apprendi challenge.

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The People contend to the extent the trial court based its selection of the upper
term on Torres’ numerous prior convictions, sustained juvenile petitions, prior prison
term22
and unsatisfactory performance while currently on parole23
the court’s sentencing
came within the Cunningham exception for a sentence based on a prior conviction.24
The
court’s reference to other factors such as involving youth in the crime or posing a danger
of bodily injury were mere dictum or, if error, then error of the harmless variety.
A number of other jurisdictions have interpreted the “prior conviction” exception
to extend beyond the mere fact of a prior conviction and to include facts more broadly
characterized as the defendant’s recidivism.25
We need not address the scope of the
“prior conviction” exception because the present case plainly falls within the
Cunningham exceptions.
The trial court’s finding Torres had suffered numerous convictions as an adult26
and a juvenile falls directly within the Cunningham exception for a sentence based on the
defendant’s prior convictions. Furthermore, the court’s finding that at the time of the
offense Torres was on parole and performed unsatisfactorily is valid under Cunningham
because the fact he was on parole at the time of the offense was admitted by his counsel27
and the fact he performed unsatisfactorily was necessarily found by the jury beyond a
reasonable doubt when it convicted him of the current offense.
We agree with the People the trial court’s references to other factors such as
involving youth in the crime or posing a risk of great bodily injury does not require
22
California Rules of Court, rule 4.421, subdivision (b)(2), (3).
23
California Rules of Court, rule 4.421, subdivision (b)(4), (5).
24
Cunningham v. California, supra, 127 S.Ct at page 860.
25
See discussion in People v. McGee (2006) 38 Cal.4th 682, 702-707.
26
In 1999, Torres was convicted of driving a vehicle without the owner’s consent
and sentenced to six years in prison. Later the same year he was convicted of possessing
a controlled substance and sentenced to 32 months.
27
See discussion in Part I A, above.

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reversal of the sentence. It is clear from the trial court’s remarks at sentencing the court
was focusing on Torres’ prior convictions and the fact he commited the present offense
while on parole. The other factors the court mentioned were merely make-weights. This
is not a case where we are left to wonder whether improper factors were determinative in
the defendant’s sentence. Without a doubt, they were not.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JOHNSON, J.
We concur:
PERLUSS, P. J.
ZELON, J.

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