P. v. Owens

Filed 11/28/05 P. v. Owens CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. DERRICK D. OWENS, Defendant and Appellant.

B177369 (Los Angeles County Super. Ct. No. BA240414)

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge. Affirmed.

Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Derrick D. Owens appeals from the judgment entered following a jury trial resulting in his convictions of four counts of first degree robbery, with a finding that in the commission of the count 6 robbery, he personally used a firearm (Pen. Code, §§ 211, 12022.53, subd. (b); counts 6, 7, 11 & 12),[1] of three counts of second degree robbery (§ 211; counts 2, 5 & 8), and of attempted first degree robbery (§§ 664/211; count 10).[2] The trial court sentenced appellant to an aggregate term of 23 years eight months in state prison.

He contends that (1) the evidence of his identity as the robber is insufficient to support his convictions, (2) the pretrial photographic identification procedures were unduly suggestive, (3) the trial court abused its discretion by denying his motion to sever, (4) appellant was entitled to have prepared reporter’s transcripts of the trial for the purpose of making his motion for a new trial, (5) the trial court improperly denied his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)), (6) the trial court had a duty sua sponte to charge the jury with CALJIC No. 2.80, concerning how the jury should evaluate expert opinion testimony, and (7) at sentencing, the trial court committed Blakely error (Blakely v. Washington (2004) 542 U.S. 296 (Blakely)).

We find his contentions to be meritless, and we affirm the judgment.

THE FACTS

Introductory Facts

Appellant was accused in a nine-count information of eight first and second degree robberies and of one attempted robbery. The prosecutor claimed that appellant had engaged in a one-man, one-month robbery spree in October and November 2002, robbing business owners in the area of his mother’s residence and calling taxicabs to that area and then robbing the drivers. At trial, appellant did not challenge that the robberies and attempted robbery had occurred; the only issue was identity. We state the identification evidence at the trial in some detail so as to avoid any distortion of that evidence.

Count 5 (formerly Count 13) ‑‑ Kunil Kim and the King Beauty Supply

On November 19, 2002, Kunil Kim (Kim) was working as a cashier at Yoon Moon’s King Beauty Supply Store, located in the strip mall at 4501 Martin Luther King Boulevard in Los Angeles. On that date, a man entered the store, walked around, and then asked Kim whether he spoke English. The man then handed Kim a note written in English, which said, “I have a gun. Give me the money quickly.” The man had his hand in a pocket, and Kim feared that the man had a gun in the pocket. Kim handed the robber $70.

At the time of the robbery and later, in speaking to Los Angeles Police Detective David Peteque, Kim described the robber as six feet tall and as an African-American male. Kim said the robber had limped, his knee was bandaged, he was dark-complected, and his hair was short.

On December 13, 2002, at the store and alone, the detective admonished Kim and showed him a six-pack photographic display, Exhibit 1. Kim testified that before he made an identification, he informed Detective Peteque that to identify the robber, he needed to see the robber in person. Nevertheless, when shown Exhibit 1, Kim selected appellant as the robber. (Appellant was depicted in a photograph in Exhibit 1 in the No. 5 position.) Kim told the detective that he believed he had seen the same man in the store on October 11, 2002, immediately before Yoon Moon was robbed.[3] At trial, Kim testified that he spoke only a “little” English, and during the interview with Detective Peteque, he had some difficulty understanding what the detective was saying.

Detective Peteque corroborated Kim’s claims about the identification. After the robbery, Kim had told the detective that he got a good look at the man, and he could identify the robber. In making the photographic identification, Kim wrote down that the No. 5 person in Exhibit 1 was the robber. Kim had some difficulty with English, so the detective finished writing Kim’s comments about his identification on the paperwork. Kim’s comments about his identification were as follows: “Suspect had dark skin. I recognize his face. I was robbed twice by this person. He gave me the note at the cash register on the robbery on 11-19-02. The other time he robbed me, 10-11-02, I was stocking shelves. He walked with a limp.”

Hana Mohammed, another King Beauty Supply employee, testified that she did not see the actual robbery. However, she saw the robber in the store just prior to the robbery, and the robber had a limp. The detective had showed her the photographic display, Exhibit 1. She told the detective that the robber’s skin texture and cornrow hair style was similar to the person depicted in photograph No. 5. At trial, Mohammed said that she had seen only a limited side view of the robber’s face and that she had told the detective about her limited view of the robber’s face. At the preliminary hearing, she testified that she had seen the robber’s face. At trial, Mohammed explained that there was no interpreter at the preliminary hearing and that she had done the best she could in her limited English to describe that she only had a limited view of the robber’s face.[4]

During cross-examination, defense counsel elicited that Mohammed had never identified appellant. Mohammed told defense counsel that when the police officers initially responded about the robbery, she mentioned to the officer that the robber had a limp. She also told the detective about the limp. She claimed that the detective had showed the photographic display to her and to Yoon Moon while they were together.

During Mohammed’s redirect testimony, the prosecutor clarified that Mohammed was not certain whether the detective had fully understood and properly recorded her comments. Mohammed acknowledged that there were language difficulties, and she could not read English. At trial, when the detective’s written comments recording her identification were translated for her, contrary to the detective’s claims, she said that she did not tell him she could identify appellant.

Count 1 ‑‑ Yoon Moon and the King Beauty Supply

Yoon Moon testified that she owned the King Beauty Supply store. On October 11, 2002, she was standing in her store near the cash register. A man in the store thrust a note at her that said, “I have a gun, so give me twenty dollar bills.” She was frightened, she handed over to the robber something less than $100, and the robber left the store. Yoon Moon described the robber as a tall African-American male with a medium build. She also said that the robber had a “dark black” complexion.

Out of court, she was asked to identify the robber. She was unable to do so.[5]

The jury acquitted appellant of the Yoon Moon robbery.

Count 2 ‑‑ Nayath Wijesurya and the 7-Eleven Store

At 6:25 a.m. on October 12, 2002, Nayath Wijesurya was working as a cashier in the 7-Eleven Store located at 4501 West Martin Luther King Boulevard in Los Angeles, at the same location as Yoon Moon’s beauty supply store. During the robbery, a man walked up to the cash register. Wijesurya is not fluent in English, and he believed that the man was asking him for change. In reply to the man’s inquiries, Wijesurya said, “No.” The man then wrote on a piece of paper, “Give me the money,” and showed Wijesurya the paper. Wijesurya became frightened and handed the robber $65 or $70. The robber left.

Later, Detective Peteque showed Wijesurya a six-pack photographic display, Exhibit 1. Wijesurya selected appellant’s photograph in the display. Wijesurya was “100 percent” certain of his identification. After questioning Wijesurya about his identification, the detective wrote down on a separate sheet of paper that Wijesurya could remember the robber’s face and nose, Wijesurya was positive about his identification, and the robber was an African-American. Wijesurya also said that the robber was dark-complected and walked with a limp. The detective recorded Wijesurya’s identification comments because Wijesurya was not fluent in English.

During trial, the prosecutor showed Wijesurya photographs mounted on poster board that were taken by the store’s security camera. Wijesurya identified the robber in the photographs as appellant.[6]

During cross-examination, Wijesurya indicated that he does not read English. At the preliminary hearing, Wijesurya was asked if there was anything unusual about the robber’s walk, and he replied that the robber “was taking a little bit longer,” which made Wijesurya ask if the robber needed assistance. At the preliminary hearing, Wijesurya had testified that in his initial police report, he told the officers that the robber “was walking a little bit unusual,” and he volunteered that the man had a limp.

On redirect testimony, Wijesurya explained that when he testified at the preliminary hearing, he was testifying without the assistance of a Singhalese interpreter, and he was far from fluent in English.[7] The prosecutor established that Wijesurya had testified at the preliminary hearing that the robber “walked funny,” and he had told Detective Peteque that the robber had a “weird” walk. As Wijesurya’s memory had faded, he could not identify appellant in court as the robber.

Count 8 ‑‑ Insik Moon and the Beauty Gallery

At about 2:00 p.m. on November 14, 2002, Insik Moon (Moon), a sales manager, was working at the Beauty Gallery, a store located at 3882 South Crenshaw Boulevard in Los Angeles. A man came in, walked around the store, and asked for a pen and paper. The man wrote a note that said, “I have a gun. Give me your money,” and handed the note to Moon. Surprised at the note’s message, Moon just stared at the robber. The robber put his hand inside a pocket and pointed with the other hand to his pocket. The robber demanded money. Moon was afraid and gave the robber approximately $150.

After the robber left the store, Moon chased him. He saw the robber limping as the robber ran down the street. During the pursuit, the robber jumped an apartment wall and evaded Moon.

The Beauty Gallery had a security videocamera. The prosecutor played a videotape of the robbery to the jury.

After the robbery, the detective showed Moon a six-pack photographic display, Exhibit 1, and Moon selected appellant’s photograph. The detective wrote down Moon’s comments about the identification on a separate piece of paper, including that Moon was positive about his identification. Moon recalled telling the detective that the robber limped, and Moon commented on the color of the man’s skin. After the detective recorded Moon’s comments, Moon read what was written, and he determined that the detective had accurately summarized his comments.

Moon testified that on February 19, 2003, he attended a live lineup at the Los Angeles County Jail. There were a number of witnesses present. Moon followed the directions given by the Los Angeles County Deputy Sheriffs conducting the lineup. Six men participated in the live lineup. Moon could not identify one of those men as the robber. At trial, he testified that the person in the lineup in the No. 2 position resembled the robber. (Appellant was in the No. 2 position.) However, Moon did not mention or write down that observation during the lineup. At that time, he was uncertain whether he could identify the person as the robber, and in his trial testimony, he indicated that he was now uncertain whether he had mentioned this observation to the deputies. Also, the man in position No. 2 in the lineup was “fatter” than the robber.

During cross-examination, defense counsel elicited that Moon rode to the live lineup with the detective and the other eyewitnesses to the robberies. Moon had described the robber to the police as being a person between 18 and 23 years of age, 165 pounds, and five feet nine inches to five feet eleven inches tall. Moon claimed that when he was shown Exhibit 1, the detective told him that someone had been “caught.”

Detective Peteque corroborated that Moon made no identification at the live lineup.

Count 6 ‑‑ Levdent Pouncy, Jr.

At about 10:00 p.m. on November 12, 2002, Levdent Pouncy, Jr., was driving a taxicab for Westside King Cab Company. He was dispatched to 4033 Palmwood Avenue, near the intersection of Hillcrest and Santa Rosalia Drives in Los Angeles. When he arrived there, “Eric,” the fare, was standing on the street about four doors from 4033 Palmwood Avenue. The area was residential, and the buildings in the area were apartment buildings. Eric gave Pouncy a distant destination, but first, Eric wanted Pouncy to drive him to a friend’s house several blocks away at the corner of Santa Rosalia and Hillcrest Drives so that he could pick up something. When Pouncy drove Eric to the intermediate location, Eric told Pouncy to park behind a car. As Eric was getting out of the taxi, Eric demanded money at gunpoint. Pouncy handed Eric $40 in cash. Eric demanded more money. Pouncy became afraid as Eric seemed to be becoming increasingly irate, so Pouncy handed Eric his entire wallet, which contained $75 or $80. Eric took Pouncey’s cash and left the cab, demanding repeatedly that Pouncy not look back as Eric walked off.

About an hour after the robbery, Pouncy personally reported the robbery at the Southwest Police Station. Later, on December 3, 2002, he met with Detective Peteque, who showed Pouncy the photographic display, Exhibit 1. Pouncy selected appellant’s photograph. Pouncy was 100 percent certain of his identification, and he commented in writing, as follows: “I recognize the person in Photo No. 5 as the person who robbed me. I recognize him mainly because of his complexion and his facial features. Mainly the chin area. The person did seem to walk with a limp or one leg stayed pretty straight.”

At trial, Pouncy explained that when he picked Eric up, Eric was standing as if he had one “stiff leg”; Pouncy never really saw Eric walking. Pouncy was unable to attend the live lineup. During his trial testimony, he identified appellant as the robber. Immediately after the robbery, he had told a police officer that the robber was 25 to 30 years old, five feet ten inches to five feet eleven inches, dark-complected and that the robber weighed 170 to 175 pounds.

Count 7 ‑‑ Darrell Harvey

At 4:00 a.m. on November 14, 2002, another driver for the Westside King Cab Company, Darrell Harvey, was dispatched to pick up a fare at 4507 West Martin Luther King Boulevard in Los Angeles. Harvey found the man standing in front of the address, which was a 7-Eleven Store. The fare said that he was going to Inglewood to work. However, he needed to pick up something first. He had Harvey drive him several blocks to a location near the corner of Hillcrest, Santa Rosalia and Palmwood Drives. Harvey said that that area was commonly known as “The Jungle” and that it is a densely populated area of apartment buildings.

At the location, the man directed Harvey to park in an alley behind a car. The man apologized, said “Break yourself,” meaning, “Give me everything you got,” and nudged Harvey in the ribs with something hard. The robber took the cab’s proceeds from Harvey, indicating that Harvey should keep his own money. The robber got out of the cab, telling Harvey to “[G]o straight” and not to “turn around and look.” Harvey could see another man seated nearby on a fire hydrant, and Harvey speculated that that person was a lookout.

After the robbery, Harvey had his manager report the robbery, and he returned to the 7-Eleven Store, where a police officer met him.

On December 3, 2002, Harvey met Detective Peteque at the Southwest Police Station. The detective asked him to read something, and then Harvey positively identified appellant in photograph No. 5 of the photographic display, Exhibit 1. Harvey wrote down the following on a separate piece of paper so as to record his identification: “I recognize the photo No. 5 as the person who robbed me. Dark complexion and big eyes. He looked like a [cocaine] smoker. I’m a hundred percent sure, No. 5.”

Count 10 ‑‑ Erick Letran

Erick Letran worked for the Millennium Taxi Company. At 1:30 a.m. on November 15, 2002, he picked up a fare at 4033 Palmwood Avenue in Los Angeles. The fare told Letran that he wanted to go to a location near Adams and La Brea Boulevards and asked if Letran belonged to a gang. The fare then asked Letran for change. He told Letran to “stop in here” at Hillcrest Drive and Palmyra Road, and he told Letran to park behind a car. As the fare started to get out of the cab, his fare demanded Letran’s money and claimed that he had a .45-millimeter firearm.

In response, Letran quickly shut the security window between the taxi’s front and rear seats. Letran revved his motor in reverse and suddenly and quickly backed up his taxi so as to return to Martin Luther King Boulevard. Letran wanted to be in a location during the robbery where someone might help him if he were shot. The robber started yelling for him to stop or he would shoot. Letran stopped his taxi at Hillcrest Drive and Martin Luther King Boulevard, and the robber got out.

When Letran had picked up the robber, he observed the robber walking for about 30 seconds before entering his cab. Letran also observed the robber running after he got out of the taxi. The robber had a limp, and when the robber ran off, he ran slowly because of the limp.

On December 2, 2002, Letran met with the detective. The detective read Letran an admonition, and Letran selected appellant’s photograph from Exhibit No. 1. He told the detective that the robber was an African-American male and that Letran was 100 percent certain of his identification.[8] Letran attended a live lineup. He testified that at that time, he had selected the No. 3 person in the live lineup. He explained at trial that “[that man] wasn’t the person who had robbed him.”

During cross-examination, Letran acknowledged that in making his initial report of the robbery, he had told a police officer that the robber was 22 to 25 years old, weighed 150 pounds, had some facial hair on his chin, and was five feet five inches tall.

Count 11 ‑‑ Rafael Romero

At 4:55 a.m. on November 16, 2002, Rafael Romero was working for the Mid Valley Yellow Cab Company. He was dispatched to 4033 Palmwood Avenue in Los Angeles. He stopped at the curb in front of the address and waited there for a few minutes. Suddenly, a man was at his rear door. The man got in and directed Romero several blocks away and down an alley. At that location, the man said, “Give me all your f------ money.” The man had something in his hand covered by a bandanna or kerchief that he pointed at Romero’s head. Romero was afraid and gave the robber his money. Then the robber asked for more money, Romero gave the robber the additional money that Romero kept in a shirt pocket. The robber continued to demand money. Romero showed the robber that he had no money in his wallet or over the driver’s visor, and the robber got out. The robber instructed Romero “not to turn around and look at him otherwise he would shoot.” Romero watched the robber walk away while he accelerated off in this taxi. He observed that the robber had a limp. Romero immediately reported the robbery to a traffic officer, but no regular patrol officer ever arrived at their location to take a robbery report.

After reading an identification admonition, Romero positively identified appellant as the robber by selecting appellant’s photograph (No. 5) from the six-pack photographic display, Exhibit No. 1. The detective wrote down Romero’s comments about the robber, including that Romero had observed a limp. Romero also attended a live lineup, and he selected the No. 3 person in the lineup as the robber, not appellant.

During his cross-examination, Romero was impeached with his preliminary hearing testimony that he had not seen the robber approach his cab or walk away from it. At trial, Romero explained that although earlier, he had claimed that he did not turn around and look at the robber, he actually had turned around once quickly and observed the robber. He also watched the robber depart by means of an additional rear view mirror that he had installed in his taxi. As he watched the robber walk off, Romero had observed the limp. He told a police officer immediately after the robbery that the robber was five feet eight inches tall. He could not recall whether he told the same officer about the limp.

Count 12 (formerly Count 17) ‑‑ Hamlet Karabekyan

At 5:45 a.m. on November 18, 2002, Hamlet Karabekyan was working for the Beverly Hills Taxi Company. As the call specified that Beverly Hills was the fare’s destination, he was dispatched to 4033 Palmwood Drive in Los Angeles. A man emerged from the building at that address. The fare instructed Karabekyan that he had an intermediate destination apart from his Beverly Hills destination. When Karabekyan drove the fare to the intermediate destination, the fare handed Karabekyan a note that demanded all of Karabekyan’s money and threatened to shoot if Karabekyan did not comply. Karabekyan was shocked and afraid. Karabekyan took out his wallet and handed it to the robber. The robber kept yelling at him to give him more money and pushed Karabekyan’s head with a hard object that he was holding. The robber told him repeatedly, “Don’t look back.” In all, the man took about $110 from Karabekyan and then told him, “Just get out of here.” The robber walked off.

On November 22, 2002, Karabekyan reported the robbery. That same day, Detective Peteque had Karabekyan read an admonition in English on a separate form and then showed him Exhibit 1. Karabekyan identified appellant (No. 5) as the robber. The detective wrote down Karabekyan’s comments about the identification because Karabekyan had difficulty writing in English. Karabekyan told the detective the following: “I got a good look at the guy. He walked from the building to my cab. I saw his face. I remember a hundred percent sure.” The detective read back the written comments, and Karabekyan signed the statement, acknowledging that the detective’s summary of his comments was accurate.

During cross-examination, defense counsel elicited that Karabekyan and several other cab drivers he knew went together to the police station to report the robberies. At the police station, Karabekyan saw a man sitting in the lobby that he believed was the robber. Karabekyan testified that he probably was wrong about that. In making his initial report, Karabekyan described the robber as a “male Black with black hair, about five-foot seven, [and] 150 pounds.”

The Arrest and the Trial Proof that Appellant Walked with a Limp

The parties stipulated that on November 22, 2002, appellant was arrested using a pay telephone at 3950 Martin Luther King Boulevard in Los Angeles. In the courtroom, appellant was asked to walk toward the prosecutor and then return to his seat at the counsel table. Also, appellant was required to lift his pant leg, which disclosed that on his left leg, appellant wore a cloth brace that covered his ankle and lower shin.

Detective Peteque’s Trial Testimony

The detective identified appellant in the courtroom as the person whose photograph he put in the No. 5 position in the six-pack photographic display, Exhibit 1. The detective said that the photograph was taken of appellant near the time of his arrest.

On November 22, 2002, the detective advised appellant of his Miranda rights, which appellant waived orally. (Miranda v. Arizona (1966) 384 U.S. 436.) The detective asked appellant to complete a written waiver of Miranda rights, but appellant refused. After his oral waiver of rights, appellant told Detective Peteque that he had a bad drug problem, and that his drug problem has been going on for approximately one year. Lately, his addiction had gotten out of hand, and he had needed the money to support his habit. He said that he would confess to all the robberies if he could participate in drug diversion without time served. The detective replied that he could make no such promise, and appellant would have to speak to his lawyer about such a disposition.

At the time of the postarrest interview, the detective had observed that appellant walked with a limp.

Detective Peteque arranged for a live lineup to be held on February 19, 2003. During the lineup, the detective’s role was limited to transporting the witnesses to the county jail. There, deputy sheriffs conducted the lineup. The detective sat at the rear of the room, and he had no contact with the witnesses. Appellant was placed in the No. 2 position in the lineup. The detective said that between the time of appellant’s arrest and the live lineup, appellant’s physical appearance had changed drastically. Appellant had put on weight, and his shoulders appeared to be more muscular or larger; appellant was “totally cleaned up.” Appellant’s head was now shaved in a “high and tight” haircut; whereas, previously, his hair had been bushy and long. During the live lineup, appellant was not asked to walk so as to disclose a limp.

The detective described for the jury that the security camera inside the 7-Eleven Store where Wijesurya worked did not produce a videotape that could be played for the jury. What was recorded by the camera was multiple single photographs. The best means for displaying the contents of that videocamera was to blow up its individual photographs. To assist the jury’s determination of whether appellant was the robber during the Wijesurya incident, the prosecution had reproduced and mounted two photographs of the robbery from the videocamera, Exhibit 7.

Detective Peteque also identified a map he had prepared for the jury of the locations of the various robberies and the location of appellant’s arrest. The detective said that the locations of the robberies and appellant’s arrest were generally just to the southwest of the intersection of Crenshaw and Martin Luther King Boulevards. The detective acknowledged that during his pretrial interviews of the witnesses and during the live lineup, he did not use the services of interpreters.

Mohammed, Gury Singh (a coworker of Wijesurya’s), Insik Moon, Letran, and Romero had attended the live lineup. They all met at the Southwest Police Station, and the detective drove the eyewitnesses in a police van to the county jail. Detective Peteque did not recall the conversation inside the van. The detective had attempted to get all of his witnesses to attend the live lineup, but he was unsuccessful; he had called each missing witnesses 14 times trying to secure their attendance. After the lineup, he heard the witnesses comment that they did not recognize anyone. At trial, Detective Peteque was asked whether after the lineup, he had informed the witnesses who made an identification that they had selected the wrong person. The detective replied that he did not discuss the results of the lineup with the witnesses. Only after the lineup did the deputy sheriffs mail him the results.

During cross-examination, the detective testified that long before appellant’s apprehension, he had realized that he was investigating a series of robberies with a similar modus operandi. Detective Peteque acknowledged that none of the police reports summarizing the police officers’ initial interviews with the robbery victims and witnesses mentioned that the robbery suspect had a limp.

On redirect testimony, Detective Peteque explained that as he interviewed the various eyewitnesses to the robberies, he had discovered that almost all the eyewitnesses had observed the robber limp. He described his investigative technique in conducting follow-up interviews. He said that in the subsequent interviews with eyewitnesses to a robbery, he attempted to fill out the description of the robbers in hopes that the information he obtained might link the robberies to potential suspects. His interviews were designed to elicit more details than would have been elicited during an initial robbery report. Detective Peteque explained that the patrol officers who take the initial reports attempt to elicit the details of the robbery. However, patrol officers are responsible for responding to some 20 to 30 radio calls a night, and by necessity, they must budget their investigative efforts. It was his job, not the patrol officers, to fully investigate any reported robberies.

Detective Peteque acknowledged that he had showed Wijesurya and Singh mug books of photographs of prior arrestees who lived in the area surrounding the robberies. The detective did not record the particular mug books shown to the witnesses. He would not have displayed the mug books to an eyewitness on the same day that he showed the witness the six-pack photographic display.

The Defense

Officer Raymond Dorsey, a 15-year veteran officer, took the initial robbery report at the King Beauty Supply. Yoon Moon and Mohammed described the assailant as five feet nine inches tall. If the witnesses had told him that the robber limped, he would have included such a distinctive characteristic in his report.

Officer Todd Clease, an 18-year veteran police officer, took the November 14, 2002 report of a robbery from Insik Moon. Moon described the robber as five feet nine to five feet eleven inches tall and said that the robber weighed about 165 pounds and was dark-complected. If the officer had been told the robber limped, he would have included it in his report. That notation was not in his report. Clease explained that in the Southwest Division, they get a lot of “hot shot” or “high priority” calls. They are trained to be as thorough as possible in taking a report, but they have limited time to complete their preliminary crime reports.

Officer Albert Del Valle, a six-and-a-half-year veteran police officer, was the officer who initially recorded Letran’s complaint of robbery. Letran said that the robber was a “male Black with black hair,” and the robber was approximately five feet five inches tall and weighed 150 pounds. Listed under “personal oddities or unusual features” in his report, Del Valle wrote down that the suspect had “sporadic facial hair on the chin and face.” No one mentioned to him that the robber limped. He said that even though the officers are busy, he is always careful to be thorough in recording victim statements. Officer Del Valle took the report at the desk at Southwest Police Station; he is certified as fluent in Spanish. The officer could not recall whether he interviewed Letran in Spanish.

Officer Pierre Olega took Rafael Romero’s November 16, 2002 robbery report. Romero had described the robber as a “male Black with black hair, brown eyes, approximately five-eight and 180 pounds.” There were no outstanding physical oddities noted in his report. If Romero had mentioned it, he would have included in his report any comment about a limp. The officer did his best to record all the pertinent information a witness disclosed in the initial crime report. Romero spoke only broken English, and the officer had interviewed him in English.

The parties stipulated that the police officers who took Wijesurya’s October 12, 2002 report and Kim’s November 29, 2002 report would testify that they had obtained no information that the robber had a limp.

Appellant testified that he lived at 651 East 41st Street in Los Angeles with his girlfriend. His mother lived at 4014 Stevely Avenue, which was just up the hill from the general location of the crimes and southwest of the intersection of Crenshaw and Martin Luther King Boulevards. Appellant denied committing the robberies. He acknowledged that he had gained weight when confined to the county jail and that he had shaved off much of his hair prior to the lineup. Upon his arrest, he had identified himself with his brother’s name, Marcus Raspberry. Appellant used that name because he had an outstanding warrant. He wore a brace on his leg because in 1995, he was shot. He claimed that he was six feet one inch tall.[9]

During his testimony, appellant claimed that he had not previously been arrested for a crime like this. He was impeached with a 1989 robbery conviction. He also claimed that Detective Peteque had coerced his confession. He said that when he was arrested at the telephone booth, he was telephoning for a taxicab that never arrived.

Defense Counsel’s Final Argument

Defense counsel argued mistaken identification. She urged that appellant’s limp was not determinative of appellant’s identity as the robber; she asserted that many robberies occurred in the area where these occurred, and it was probable that appellant was not the only person in the area who had a limp. Counsel argued that the six-pack photographic display was unduly suggestive, and the other persons depicted in the photographic lineup looked nothing like appellant ‑‑ appellant had a very dark complexion.

Counsel asserted that the initial physical descriptions given of the robbers differed, and every one of the nine eyewitnesses had failed, inter alia, to mention the limp. If the robber had actually limped, someone would have noticed it. The police officers who took the initial reports were trained and experienced. They would not have erred by omitting such an important characteristic from their reports; a limp was the kind of characteristic that reasonably should have been elicited by the officers, even if the press of business prevented them from conducting thorough investigations. One of the eyewitnesses testified that he saw no limp at the preliminary hearing, even though he was asked directly about such a characteristic. Despite that eyewitness’s preliminary hearing testimony, at trial, the eyewitness changed his testimony and claimed that the robber had a limp.

Defense counsel argued that “I don’t know that I could believe that . . . seven people could be persuaded to remember something that didn’t happen. So I’m not sure what the explanation for it is. I think it’s strange.” Counsel also asserted that the height and weight disparities in the descriptions of the robber were strange. She said that no one made an identification at the live lineup, and that suggested that the photographic identifications might be tainted. She reminded the jury that an in-court identification can be fraught with error as the eyewitnesses know where the defendant sits in the courtroom. Counsel urged there was no similar modus operandi evidence because during two of the robberies, the assailant apparently had a gun.

As to counts 1 and 5, defense counsel argued that Yoon Moon could not make an identification, and Kim’s identification of appellant was “weak.” Mohammed’s identification of appellant was based only on a similarity of skin texture and hair color. The truth about the Wijesurya robbery was dependent upon one photographic identification. In the Pouncy taxicab robbery, Pouncy’s claim about seeing a limp was impeached, thus compromising his photographic identification. Little credence should be afforded to Pouncy’s belated courtroom identification of appellant. As in the taxicab robbery of Harvey, the modus operandi of that robbery was considerably different than the robberies in the other counts. Plus, Harvey may have been misled because appellant was the only person in the photographic display with a dark complexion. As for the robbery of Insik Moon, the jury would have to determine from the videotape of the robbery whether appellant was the robber. Moon’s in-court identification was suspect because he did not make an identification at the live lineup. Also, Moon said that appellant, who was in the No. 2 position in the live lineup, was fatter than the robber. As for the attempted robbery of Letran, Letran described appellant as only five feet five inches tall and selected another person as the robber at the live lineup. Letran also failed to mention the limp in his initial report to the police. Romero claimed that the robber was shielding his hand with a bandanna, and he might have been holding a gun. Thus, the modus operandi in the Romero robbery did not match the others. Romero made conflicting statements regarding his ability to observe a limp and initially failed to reveal to a police officer that the robber had limped. As for the Karabeykyan robbery, Karabeykyan did not have an opportunity to look at his fare, and he described a person that was significantly shorter than appellant. Karabeykyan identified appellant in the Exhibit 1, but as was mentioned before, the photographic display was tainted because of the lack of similarity among the persons depicted. Also, Karabeykyan did not initially mention a limp.

DISCUSSION

1. The Sufficiency of the Evidence

Appellant contends the identification evidence is insufficient to support appellant’s convictions.

In reviewing the sufficiency of the evidence, “courts apply the ‘substantial evidence’ test. Under this standard, the court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ‑‑ that is, evidence which is reasonable, credible, and of solid value ‑‑ such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.].” (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314.)

The uncorroborated testimony of a single witness is sufficient to sustain a conviction unless it is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296; see In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497 [single witness’s in-court identification of the defendant, even without corroboration of prior photographic evidence, is sufficient evidence of identity to support a conviction].) Indeed, “‘[t]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.’ [Citations.]” (In re Robert V. (1982) 132 Cal.App.3d 815, 821.)

Appellant is complaining that the evidence of his identification as the robber is insufficient because: (1) the eyewitnesses gave varied descriptions of the robber, e.g., they described the robber to be anywhere from five feet five inches to six feet tall and weighing from 150 to 175 pounds, when at trial it was established that appellant was six feet one inch tall and weighed 230 pounds; (2) there was evidence casting doubt upon whether appellant had admitted to the detective that he was the robber; (3) although most of the eyewitnesses testified that they had observed the robber walking with a limp, no police officer noted in his report that he had been told that the robber limped; (4) the photographic identifications were all tainted as the photographic display was unduly suggestive; (6) Mohammed testified that she saw only the robber’s complexion and his hair and she never saw his face; (7) Wijesurya gave conflicting information at trial and at the preliminary hearing or to the police as to whether the robber had a limp and as to the certainty of his identification; (8) the identification of appellant occurred only because the police used suggestive procedures to obtain an identification; (9) Detective Peteque overstated in writing the certainty of several eyewitnesses’ identifications as a result of the witnesses’ lack of English fluency; (10) Romero and Pouncy gave conflicting testimony about observing a limp; (11) as a critical factor in Harvey’s photographic identification was appellant’s skin color, and that factor was also a critical factor in demonstrating the photographic display’s suggestiveness, Harvey’s identification of appellant was unreliable; and (12) Letran identified someone other than appellant at the live lineup.

We find appellant’s contention to be meritless. The discrepancies in the evidence appellant asserts on appeal do not require a reversal. There was contrary evidence showing appellant’s identity as the robber on each of the points raised by appellant. Defense counsel was given an ample opportunity to explore the circumstances of the identifications during cross-examination and to elicit any evidence at trial disproving appellant’s identity as the robber. During final argument, the prosecutor and trial counsel argued the discrepancies in the identification evidence at length. The jury made the determination of who and what to believe after listening to the trial evidence and after hearing final argument by the prosecutor and counsel. Given the record before us, the issue of credibility of the witnesses was one for the jury, and the evidence supports the jury’s verdicts. (People v. Fagalilo (1981) 123 Cal.App.3d 524, 530-531; see People v. Snow (2003) 30 Cal.4th 43, 67 [where the jury can reasonably credit one witness’s testimony over another’s, the Court of Appeal cannot reweigh such questions of credibility].)

2. The Claim of Unduly Suggestive Pre-trial Identifications

Appellant contends that the six-pack photographic display and the live lineup were unduly suggestive and that accordingly, the trial court should have suppressed the pretrial and in-court identifications. We do not have to reach this issue.

It is settled that where a defendant raises on appeal a challenge to an identification procedure on grounds it is unduly suggestive, the failure to object in the trial court on the same grounds waives the point. (People v. Medina (1995) 11 Cal.4th 694, 753; see also, Evid. Code § 353.) There was no objection or motion made before or during trial to exclude the extrajudicial and in-court identifications on the due process grounds that the identification procedures were impermissively or unduly suggestive. Accordingly, the contention is waived, and we decline to address it on appeal.

Belatedly in his reply brief, appellant raises a claim of ineffective trial counsel as defense counsel failed to object at trial on the grounds of unduly suggestive eyewitness identification procedures. During the motion for new trial, defense counsel explained why she did not raise the issue during the trial. She said, “I didn’t have any legal basis to make a motion to exclude. In fact, the I.D. expert that consulted on the case didn’t give me any indication that there was anything unduly suggestive about the photo six-packs.” She also explained, “I made a factual argument to the jurors as to why they should be skeptical of the six-packs, but I didn’t have a legal basis to make a motion to exclude them.”

To prevail on a claim of ineffective assistance of counsel, the defendant must establish both “(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, italics omitted.) As to the prejudice component, the California Supreme Court has held that a “‘reasonable probability is a probability sufficient to undermine confidence in the outcome’” of the prosecution. (People v. Cox (1991) 53 Cal.3d 618, 656.)

“If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1126.) “‘[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’” (People v. Cox, supra, 53 Cal.3d at p. 656, quoting Strickland v. Washington [(1984)] 466 U.S. [668,] 697.)

“A court reviewing the conduct of counsel must in hindsight give great deference to counsel’s tactical decisions. [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 703.) Whether to object to arguably inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference, failure to object seldom establishes counsel’s incompetence. (People v. Maury (2003) 30 Cal.4th 342, 415-416; People v. Rodrigues, supra, 8 Cal.4th at p. 1121.)

Defense counsel testified that she had concluded after a consultation with her identification expert that such an objection would be futile. Appellant’s complaints about the photographic display were that appellant was significantly darker-complected than the other persons depicted in Exhibit 1 and that there were numbers beneath his photograph but not under the other photographs in the display. We have examined Exhibit 1, and we conclude that appellant’s photograph (No. 5) is not distinctively different from the other photographs in the six-pack photographic display and would not, because of a unique appearance, cause witnesses to mistakenly identify appellant as the robber. The numbers on Exhibit 1 appear at the bottom of the page. Although they are located beneath appellant’s photograph, it is apparent that the numbers identify Exhibit 1 as a whole and the particular police investigation, and they are not related to the photograph immediately above. From this record, we cannot say that defense counsel’s decision not to object was an unreasonable tactical choice. (People v. Najera (1972) 8 Cal.3d 504, 517; People v. Davis (1969) 270 Cal.App.2d 841, 844 [trial counsel’s failure t object to a lineup procedure may be a legitimate tactical decision].) Consequently, we find no evidence of trial counsel ineffectiveness.

3. The Severance Motion

Appellant contends that the trial court abused its discretion by failing to grant his severance motion. We conclude that appellant forfeited his contention by failing to make such a motion in the trial court.

“‘. . . Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.’” (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)

In his opening brief, appellant argues that the trial court abused its discretion by failing to sever the count 2 Wijesurya 7-Eleven robbery and the count 8 Insik Moon robbery from the other counts. The Attorney General responds that the issue is waived as appellant never moved to sever. We agree. It is settled that where a defendant fails to move for severance, the issue is waived on appeal. (People v. Maury, supra, 30 Cal.4th at p. 392 [§ 954 imposes no sua sponte duty to sever on trial courts, and the failure to make the motion waives the issue on appeal]; People v. Pinholster (1992) 1 Cal.4th 865, 931 [waiver].) We note that in finding waiver, any claim appellant raises of a denial of federal due process for the failure to sever is also waived by his failure to raise the issue in the trial court. (People v. Maury, at p. 392.)

In his reply brief, appellant seeks to avoid the forfeiture by arguing that he has preserved the issue by raising the point during his motion for new trial. However, the authorities he cites are not pertinent to his claim. The one exception is the decision in People v. Borba (1980) 110 Cal.App.3d 989, 994 and footnote 2, which is on point, but indicates that raising the issue only belatedly during the motion for new trial does not preserve the issue for appellate review. To the extent that the new trial motion might permit him to claim a denial of due process, we conclude the failure to sever these two counts did not deny appellant a fair and impartial trial.

There are hints in this record that at some point, the preceding trial counsel opposed joinder. But our record is incomplete in that respect, and we are unable to conduct appellate review in the absence of a further record on the joinder. (People v. Barton (1978) 21 Cal.3d 513, 519-520 [it is the defendant’s burden to provide a record adequate to resolve an issue].)

Also, to avoid the forfeiture, appellant belatedly in his reply brief argues ineffective trial counsel. We apply the two-pronged test for ineffective trial counsel that we stated in resolving appellant’s previous contention.

Appellant’s defense counsel asserted at the motion for new trial that she did not move to sever as her preceding counsel had unsuccessfully opposed joinder. She reviewed the circumstances of the joinder and determined that a motion to sever would be futile. We agree. The crimes were all of the same class ‑‑ they were all robberies or attempted robberies. (§ 954; People v. Valdez (2004) 32 Cal.4th 73, 119-121; Williams v. Superior Court (1984) 36 Cal.3d 441, 447-450.) Thus, appellant would have had to establish prejudice from the joint trial. (People v. Jenkins (2000) 22 Cal.4th 900, 947-948.) The trial court may not have ruled that all the counts were cross-admissible against the others, but most and perhaps all of the offenses had sufficiently distinctive characteristics so to be relevant to one another in establishing appellant’s identity as the robber. (§ 1101.) The offenses were all equally inflammatory, and there were no counts with comparably weaker evidence on which there might have been a potential “spillover” effect causing convictions that otherwise would not have occurred. Further, we see no gross unfairness in trying all the offenses in one proceeding. As appellant was unlikely to have prevailed on a motion to sever, counsel’s failure to seek the severance was a reasonable trial tactic. (People v. Stitely (2005) 35 Cal.4th 514, 531-533; People v. Maury, supra, 30 Cal.4th at pp. 392-394; People v. Jenkins, supra, 22 Cal.4th at pp. 947-948.)

4. Appellant’s in Propria Persona Requests for Trial Transcripts

Appellant contends that he was entitled to have the reporter prepare trial transcripts to assist him in preparing his motion for new trial, and the failure to grant his request denied him federal due process. The point is not well taken.

Appellant was represented by counsel during the trial. On the date originally set for sentencing, appellant asked to proceed in propria persona (in pro. per.). The trial court granted his motion after a Faretta waiver. (Faretta v. California (1975) 422 U.S. 806.) Several times during the four months before his motion for new trial was heard, appellant requested the preparation of reporter’s transcripts of the trial proceedings. He claimed that he needed the transcripts to prepare his motion for new trial. In appellant’s written motion, he requested the transcripts merely on the basis that he was entitled to them as he was indigent.

At one point, orally, appellant claimed that he wanted the trial transcripts because a lot of witnesses testified at trial and “it would be difficult for [him] to go back in [his] head to think about everything that was said [during] the trial.” He also said, “ . . . I’m going off of my memory and head. Counsel advised me that I did not need to take notes because she had discovery.” He asserted that his defense counsel had given him copies of her documentation. However, she did not deliver any trial notes to him. He said that he had forgotten “half of everything that went on in trial.” The only way he was going to be able to present “everything” in his motion for new trial was to have the trial transcripts.

The trial court denied his request. It commented that appellant did not present a justification for obtaining the trial transcripts. After a later request, the trial court commented that appellant was present throughout the trial with his defense counsel. Also, his Faretta status did not entitle him to the trial transcripts.

As the trial court noted, appellant was present throughout the trial with his counsel, and he was unencumbered at trial in paying full attention to the witnesses’ testimony and to the other trial events. He was not entitled to any special consideration for his lack of legal skills in preparing his motion. Nor was he entitled to special treatment because he had chosen self-representation. We find no evidence in the record that appellant was hindered in presenting his claims without the transcripts.

The decision in People v. Westbrook (1976) 57 Cal.App.3d 260 does not support appellant’s claim. There, the defendant was entitled to transcripts because he had obtained new trial counsel for the purpose of bringing a new trial motion. Here, appellant was present throughout the trial and thus showed no particularized need for the preparation of trial transcripts.

5. The Pitchess Motion

Appellant contends that the trial court improperly denied his Pitchess discovery request for Detective Peteque’s personnel records. (Pitchess v. Superior Court, supra, 11 Cal.3d 531.) Any error is at best harmless.

Before trial, appellant moved to discover acts of misconduct contained in Detective Peteque’s personnel records. Appellant’s theory for Pitchess discovery was that Detective Peteque had bolstered the eyewitnesses’ identification evidence by improperly suggesting to the eyewitnesses that the person arrested for the robbery had a limp or that the detective had put false information in his supplementary police reports by claiming that the eyewitnesses had told him that the robber limped. The trial court denied the motion on the grounds that the trial counsel’s declaration in support of the motion was overly broad and vague.

We find appellant’s contention to be unpersuasive. Even if the trial court erred because appellant made a showing of good cause in support of his request (see Warrick v. Superior Court (2005) 35 Cal.4th 1011), any error was harmless in light of the extensive evidence linking defendant to the various offenses. The eyewitnesses identified appellant independently of appellant’s limp in a photographic display involving only photographs of appellant’s face. Two witnesses identified appellant in court as the robber. Appellant’s postarrest statement to the police and other circumstantial evidence linked him to the commission of the offense. Also, at trial, no evidence of official misconduct was apparent despite extensive examination on the issue. Thus, there was no trial evidence to serve as the predicate for the admissibility of Pitchess-developed evidence of a pattern of official misconduct. (People v. Samuels (2005) 36 Cal.4th 96, 109; People v. Watson (1956) 46 Cal.2d 818, 836.)

6. CALJIC No. 2.80

Appellant contends that the trial court had a duty sua sponte to charge the jury with CALJIC No. 2.80, concerning how the jury should consider expert opinion testimony. We disagree.[10]

In making this contention, appellant relies upon two principles of law: (1) CALJIC No. 2.80 should be given to the jury when the prosecutor relies upon opinion evidence given by an expert witness (People v. Daniels (1991) 52 Cal.3d 815, 884; People v. Ruiz (1970) 11 Cal.App.3d 852, 864-865), and (2) CALJIC No. 2.80 is crucial to the jury’s full understanding of the issues because it explains to the jury that in evaluating expert opinions, the jury is not bound to accept the expert’s opinion as conclusive, and it should give the opinion the weight that it finds that evidence deserves (People v. Mitchell (1994) 30 Cal.App.4th 783, 809).[11]

Appellant argues that in this instance, the instruction was required because five police officers testified in the case. Some of their testimony was based upon their special training and experience as police officers. Further, their testimony elucidated the methods used to investigate the crime, explained standardized police procedures used to obtain the eyewitness identifications and admissions from a defendant, and described the comments of the eyewitnesses when they were asked to provide descriptions in the course of the investigation. At trial, Detective Peteque also had testified about how the medium used in the security camera at the 7-Eleven Store was not videotape that simply could be replayed on a videocassette player for the jury. Officer Clease testified to his conclusion that the area in which the Beauty Gallery was located was a high crime area.

Appellant claims that there was error because the “procedures for assembling and utilizing a photo[graphic] six-pack, a live lineup, mug books, and interrogation techniques are beyond the experience [of] a lay person lacking a law enforcement background. Accordingly, substantial expert testimony was given in this case which required the court to instruct the jury with CALJIC No. 2.80.”

Appellant’s contention is flawed. The facts and his legal principles do not coincide. The officers’ testimony was not expert opinion testimony. As the officers gave no expert opinions, the trial court was not required to charge the jury sua sponte as to how to evaluate such opinions. (People v. Lynch (1971) 14 Cal.App.3d 602, 609 [medical doctor’s testimony concerning the physical condition of the victim did not involve expert opinion and was not testimony within the scope of Penal Code section 1127b]; People v. Morcumb (1938) 28 Cal.App.2d 465, 468 [result of a medical doctor’s examination of one of the complaining witnesses is not expert opinion requiring a section 1127b instruction].)

We do not need to decide whether Detective Peteque gave an expert opinion as to how the 7-Eleven Store’s security camera operated and whether Officer Clease gave an expert opinion when he said that the Beauty Gallery was located in a high crime area, as contrasted with whether the officers merely testified to lay opinions. Whether or not the testimony constituted expert opinion, it is so inconsequential to the major issues in the case that we deem these bits of testimony insubstantial in requiring the use of CALJIC No. 2.80. (See People v. Haynes (1984) 160 Cal.App.3d 1122, 1136-1137 [a sua sponte instruction is required only where expert opinion testimony has been received].)

The decision in People v. Ruiz, supra, 11 Cal.App.3d 852 is of no assistance to appellant. In that decision, the appellate court held that a 1127b violation was prejudicial error where both parties relied upon two defense psychiatrists’ medical opinions as the basis for a jury determination as to the defendant’s defense of sanity at the time of the offense. (Id. at pp. 860-866.) Ruiz does not elucidate the threshold issue we have here as to whether the officers’ testimony is expert opinion testimony within the meaning of Evidence Code section 801, so as to require a sua sponte instruction.

7. The Blakely Error

Appellant makes a Blakely claim on appeal. He contends that there was structural error as the trial court imposed an upper term based on aggravating non‑recidivist factors without findings by a jury beyond a reasonable doubt of the truth of the factors and without appellant’s admission of such factors. The contention lacks merit.

Appellant’s contention was rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black), which concluded that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) The court stated, “[I]n operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [Apprendi v. New Jersey (2000) 530 U.S. 466], Blakely [Blakely v. Washington (2004) 542 U.S. 296], and Booker [United States v. Booker (2005) __ U.S __ [125 S.Ct. 738, 160 L.Ed.2d 621]].” (Id. at p. 1254.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, P. J.

BOREN

We concur:

______________________, J.

DOI TODD

______________________, J.

ASHMANN-GERST

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[1] Unless otherwise specified, all further statutory references are to the Penal Code.

[2] Counts 13 and 17 of the information were designated, respectively, as counts 5 and 12 in the jury verdict forms.

[3] The cross-examination about the witness’s photographic identification was as follows: “Q. So ultimately, you did say that you recognized No. 5 as the suspect who robbed you? [¶] A. Yes. [¶] Q. And is that because he looked the most like the person that robbed you. [¶] A. Yes. [¶] Q. You told the detective you would prefer to see someone live, in person? [¶] A. Yes.”

[4] At trial, the witness testified with the aid of an Ahmaric interpreter.

[5] At trial, Kim and Yoon Moon used Korean interpreters to testify. Neither of the witnesses was fluent in English.

[6] We examined the photographs in Exhibit 7. The photographs do not depict the robber’s physical features so clearly that apart from Wijesurya’s identification, the photographs independently establish appellant’s identity as the robber.

[7] During the trial, the witness used a Singhalese interpreter.

[8] Letran also claimed that prior to viewing the six-pack display, he was shown a book or binder with multiple photographs, and he was unable to select a photograph from that group of photographs.

[9] Later during his motion for a new trial, he claimed that he weighed 230 pounds.

[10] The pattern jury instruction, CALJIC No. 2.80, implements section 1127b and states, as follows. “[A witness] [Witnesses] who [has] [have] special knowledge, skill, experience, training or education in a particular subject [has] [have] testified to certain opinions. This type of witness is referred to as an expert witness. In determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. [¶] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable.”

[11] Evidence Code section 801 states: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

Section 1127b provides in pertinent part, as follows. “When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable.”