People v. Jackson CA5
F088288
Cal. Ct. App.Jan 9, 2026Check TreatmentFiled 1/9/26 P. v. Jackson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088288
Plaintiff and Respondent,
(Super. Ct. No. VCF392612)
v.
JERMON HENDRICK JACKSON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Nathan G.
Leedy, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Kimberely A. Donohue, Assistant Attorney General, Dina Petrushenko and Darren K.
Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found defendant Jermon Hendrick Jackson guilty of committing three
drive-by shootings, two in 2017 and one in 2019.1 He was convicted of first degree
murder with a special circumstance finding, attempted murder, criminal street gang
conspiracy, shooting at an inhabited dwelling, and assault with a firearm. He was
sentenced to prison for life without the possibility of parole, a determinate term of 68
years, plus an indeterminate term of 64 years to life.
On appeal, Jackson challenges the sufficiency of the evidence. He argues there
was insufficient corroborating evidence to support the accomplice testimony regarding
the two shootings committed in 2017. He also contends that the eyewitness testimony
related to the 2019 shooting was unreliable and insufficient to establish his guilt. Jackson
maintains that the mid-trial admission of enhanced surveillance videos and testimony
related to the video evidence denied him of his constitutional rights.
We reject Jackson’s claims and affirm the judgment.
PROCEDURAL BACKGROUND
On August 31, 2023, the Tulare County District Attorney filed an amended
information charging Jackson with the murder of Jesus Carrillo (count 1; Pen. Code,2
§ 187, subd. (a)), criminal street gang conspiracy (counts 2, 4, 7; § 182.5), willful,
deliberate, premeditated attempted murder of Miguel P. (counts 3, 5; §§ 664, subd. (a),
187, subd. (a)), shooting at an inhabited dwelling (count 6; § 246), and assault with a
firearm (counts 8, 9, 10; § 245, subd. (b)). As to count 1, it was alleged that the murder
was perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd.
(a)(21)), and while Jackson was an active participant in a criminal street gang (§ 190.2,
subd. (a)(22)).
1 The shootings occurred on April 19 and 22, 2017, and December 28, 2019.
2 Undesignated statutory references are to the Penal Code.
2.
The amended information alleged as to counts 1, 3, 5, 6, 8, 9, and 10 that Jackson
committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)).
It was also alleged as to counts 1, 3, 5, and 6 that a principal personally and intentionally
used and discharged a firearm that proximately caused great bodily injury and death
(§ 12022.53, subds. (b), (c), (d), (e)(1)). As to count 3, it was alleged that Jackson
personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to counts 8, 9, and 10,
the amended information alleged that Jackson personally used a .223 rifle during
commission of the crime (§ 12022.5).
The amended information further alleged the following aggravating
circumstances: as to all counts, the crime involved great bodily harm (Cal. Rules of
Court,3 rule 4.421(a)(1)), Jackson was armed with or used a weapon during the
commission of the crime (rule 4.421(a)(2)), Jackson engaged in violent conduct that
indicates a serious danger to society (rule 4.421(b)(1)), the crimes and objectives were
predominately independent of each other (rule 4.425(a)(1)), the crimes involved separate
acts of violence and threats of violence (rule 4.425(a)(2)), and the crimes were committed
at different times and in separate places (rule 4.425(a)(3)). As to count 1, it was alleged
the victim was particularly vulnerable (rule 4.421(a)(3)) and as to counts 1, 3, 5, 6, 8, 9,
and 10 it was alleged the crime involved sophistication and planning (rule 4.421(a)(8)).
The jury found Jackson guilty of the non-gang related counts and found the non-
gang related allegations true.
After a bifurcated trial on the gang-related allegations, the jury found true the
gang-related allegations as to counts 1 and 3. The jury also found Jackson guilty as
charged on counts 2 and 4. The jury found Jackson not guilty on count 7, and the gang-
related allegations as to counts 5, 6, 8, 9, and 10 to be not true.
3 Undesignated rule references are to the California Rules of Court.
3.
On May 3, 2024, the trial court sentenced Jackson to life without the possibility of
parole, a determinate term of 68 years, plus an indeterminate term of 64 years to life as
follows: on count 8, six years, plus four years for the section 12022.5, subdivision (d)
enhancement; on count 9, six years, plus four years for the section 12022.5, subdivision
(d) enhancement to run concurrent with count 8; on count 10, six years, plus four years
for the section 12022.5, subdivision (d) enhancement to run concurrent with count 9; on
count 1, life without the possibility of parole, plus 25 years to life for the section
12022.53, subdivision (d) allegation to run consecutive to count 10; on count 3, seven
years to life, plus 25 years to life for the section 12022.53, subdivision (d) allegation, plus
three years pursuant to section 12022.7, subdivision (a), plus 10 years pursuant to section
186.22, subdivision (b)(1)(C) to run consecutive to count 1; on count 5, seven years to
life plus 20 years pursuant to the section 12022.53, subdivision (c) to run consecutive to
count 3; on count 6, five years, plus 20 years pursuant to section 12022.53, subdivision
(c), to run consecutive to count 5. The terms on counts 2 and 4 were stayed pursuant to
section 654.
FACTUAL BACKGROUND
A. Guilt Phase
Hector M. was a member of the Varrio Woodlake Locos (VWL) gang in 2017, a
subset of the Norteño gang from the Woodlake area.4 He often “hung out” with Jackson,
who was a member of the Varrio Farmas Catorce (VFC) gang in 2017, which was a
subset of the Norteño gang from the Farmersville area.
4 Hector M. initially denied involvement in the case because he was still a member
of the Norteño gang. However, pursuant to a plea agreement, he pled guilty to second
degree murder and testified in this case in exchange for a sentence of 15 years to life.
Hector M. is not currently a gang member.
4.
1. Shooting of Miguel P. on April 19, 2017
On April 19, 2017, Hector M. met Jackson at Jackson’s house. Jackson showed
Hector M. his “personal gun,” a .45-caliber Glock, before they left the house.
Hector M. drove Jackson in his (Hector M.’s) Lincoln to another location where
they met P.D., a squad leader of the VWL gang.5 P.D. showed Hector M. that he had a
“Blue Steel .357 Magnum” gun. P.D.’s gun had a badge on it and was a “police edition”
that belonged to his squad. Thereafter, Hector M. drove Jackson and P.D. to the store.
P.D. then drove Jackson and Hector M. in Hector M.’s car to an apartment
complex in Ivanhoe. They drove through the parking lot of the complex one time. As
they drove by, they saw about five people outside smoking, listening to music, and
wearing blue. Hector M. thought they were Southern gang members. P.D. parked the car
outside of the complex for about two minutes. Jackson wanted to “go back” to the
apartment complex. When P.D. drove back to the apartment complex, both Jackson and
P.D. were armed. Hector M. was not armed. Once they approached the people in the
parking lot, shooting began.
P.D. shot his .357-caliber gun and Jackson shot his .45-caliber Glock.6 They fired
their guns over 10 times from Hector M.’s car and the individuals shot back. Then, P.D.
drove away.
A neighbor heard about 13 gunshots. Another neighbor heard about 10 gunshots
and observed a “smaller sedan” exit the complex at a high speed.
Tulare County Sheriff’s Deputy Robert Richardson responded to the scene on
April 19, 2017. When Richardson arrived, there were about 12 individuals in the center
5 P.D. was a squad leader of the VWL gang in 2017; Hector M. reported to him.
Jackson was a squad leader of the VFC gang.
6 P.D.’s revolver did not expel any casings. Jackson’s Glock expelled casings.
5.
of the apartment complex surrounding Miguel P., who suffered from gunshot wounds.
Miguel P. was a member of Loco Park, a subset of the Sureño gang.
There were 11 spent nine-millimeter casings, four .45-caliber casings, and
fragmented bullets found at the scene of the crime. The .45-caliber casings were found in
the roadway where Miguel P. had been shot. The nine-millimeter casings were found in
an enclosed dumpster area.
Video surveillance was obtained from a nearby apartment. The video showed
Hector M.’s Lincoln drive through the apartment complex once to “scope out a target.”
The Lincoln drove into the complex a second time and shots were fired. Muzzle flashes
came out the window of the Lincoln in the direction of where Miguel P. was standing and
near the dumpster where someone returned fire.
2. Shooting of Jesus Carrillo on April 22, 2017
On April 22, 2017, Hector M. picked up Jackson and drove him to Hector M.’s
cousin’s house before noon. Jackson carried a backpack that contained a .223-caliber
rifle, described by Hector M. as a “little mini AR”, and Jackson’s “personal gun.” Upon
arrival they met other Norteño gang members, including Hector M.’s cousin and his
cousin’s younger brother, Nicholas P. Hector M. planned to go to Woodlake to receive a
“disciplinary infraction” from his gang channel. He took Nicholas P. and Jackson with
him in his Lincoln to ensure he would not get beaten too badly. On the way, however,
Nicholas P. told Hector M. to drive to Ivanhoe.
Hector M. drove to Ivanhoe and drove up and down streets trying to find rival
gang members. Nicholas P. sat in the front passenger seat, and Jackson sat in the rear
passenger seat. They encountered Carrillo walking down the street wearing Sureño gang
attire, a blue hat and long socks. Carrillo was a South Side Kings Southern gang
member.
6.
Hector M. pulled his Lincoln next to Carrillo. Nicholas P. began shooting at
Carrillo with his .357-caliber gun, the same one that P.D. used in the shooting on April
19, 2017. Jackson also fired shots from his .223-caliber rifle. About eight total shots
were fired, then Hector M. drove away.
A physician’s assistant working at a clinic in Ivanhoe, heard the shots fired. He
went outside to investigate and saw a man lying on the ground. The physician’s assistant
laid Carrillo on his back and performed CPR but did not get a pulse. Carrillo suffered
seven gunshot wounds. He died from a single penetrating wound.7
Two .223-caliber shell casings were found at the scene, as well as a larger
projectile “possibly” shot from a .357-caliber revolver.
Surveillance videos of the April 22, 2017 shooting showed what appeared to be the
same Lincoln sedan used in the April 19, 2017 shooting. Two weapons shot at Carrillo
from the car. One fired from the passenger seat, and another was fired from the rear
passenger seat.
The surveillance videos were enhanced by the prosecution.8 The driver was
identified as Hector M., who was not shooting. The person in the rear passenger seat was
more heavyset than Hector M. He had a dark complexion and wore a “Fedora-style cap.”
A rifle was fired from the rear passenger seat. The front passenger wore a ball cap and
fired a “revolver style” handgun.
3. Investigation of the Shootings on April 19 and 22, 2017
On August 1, 2017, Farmersville Police Officer Kristine Barklow searched
Jackson’s residence. She found .45-caliber and .223-caliber ammunition inside the
7 The parties stipulated to this fact at trial.
8 The enhancements made on the April 22, 2017 videos magnified the images.
7.
dresser of Jackson’s bedroom. She also found a “mini AR-15” rifle inside a backpack. A
.45-caliber Glock was found on Jackson’s bed.
There was also a receipt for the purchase of ammunition at a Walmart store dated
June 28, 2017. Video surveillance of the store on that day showed Jackson inside at the
time the ammunition was bought. Jackson exited the store about 30 seconds after the
male who purchased the ammunition.
Jessica Winn, an expert in firearms and ballistic analysis, opined that the .45-
caliber cartridge casings found at the scene of the April 19, 2017 shooting were fired by
the .45-caliber Glock found in Jackson’s bedroom.
Winn also tested the .223-caliber AR-15 rifle. The results were inconclusive as to
whether the two .223-caliber cartridge casings found at the scene of the shooting on April
22, 2017, were from the AR-15 rifle found in Jackson’s bedroom. Winn explained that
while the class characteristics agreed and the caliber was the same, the individual detail
did not provide enough information on the test-fired casings because the rifle model did
not mark well.
Jackson’s phone was in the Ivanhoe area at the time of both shootings on April 19
and April 22, 2017.
On April 19, 2017, phone records revealed that two calls were made between
Hector M. and Jackson at 8:31 p.m. There were 28 text messages sent between
Hector M. and Jackson on that day, the first sent at 7:17 p.m. and the last sent at
8:26 p.m. The shooting occurred around 10:30 p.m. Text messaging between the pair
resumed on April 20, 2017, at 12:51 a.m.
On April 20, 2017, Hector M. and Jackson exchanged 45 text messages.
On April 21, 2017, Hector M. and Jackson exchanged 31 text messages.
8.
On April 22, 2017, Hector M. and Jackson exchanged 46 text. The shooting
occurred around 4:15 p.m. There were no text messages sent between 2:45 p.m. and
4:45 p.m.
Based on the location of Jackson’s phone, the messages between Jackson and
Hector M. from April 19 to April 22, 2017, showed their communications ended shortly
before Jackson’s phone left the Farmersville area, and the communication did not start
again until Jackson’s phone was back in the Farmersville area. This tended to show that
Jackson and Hector M. were together in Ivanhoe at the time of both shootings.
4. Shooting on December 28, 2019
On December 28, 2019, a car drove by and shot several rounds at a residence in
Farmersville. S.Z., A.Z., O.Z., and F.Z.9 were present, and initially told law enforcement
that Jackson committed the shooting. Jackson drove by in a car similar to a “Lincoln”
and thereafter drove in a “blue” car and shot at their residence several times.
5. Investigation of the Shooting on December 28, 2019
Earlier that month, on December 4, 2019, text messages showed Jackson tried to
buy a nine-millimeter gun. Jackson was also seen standing next to a “blue Ford Fusion”
at a gas station on December 24, 2019.
At 9:16 p.m. on December 28, 2019, Jackson sent text messages showing he had
suffered a gunshot wound. When asked how it happened, Jackson sent another text
message showing pictures of the residence where the shooting took place.
The investigation after the shooting revealed three spent .223-caliber rifle casings
and 14 nine-millimeter casings at the scene.
On December 30, 2019, a gray car similar to a “Lincoln” parked in front of the
“Jackson family” house.
9 S.Z., A.Z., O.Z., and F.Z are all members of the Z family.
9.
On January 14, 2020, Jackson sent a text message that stated, “ ‘Fuck all the
[members of the Z family] and that fool [F.Z.]’ ”
B. Gang Phase
Tulare County Sheriff’s Deputy Oscar Sanchez and Farmersville Police Sergeant
Luis Frausto testified as gang experts. Each town has its own “turf” or subset of the
Norteño gang. VFC is a subset of the Norteño gang predominately located in
Farmersville. VWL is a subset of the Norteño gang located in Woodlake.
VFC and VWL gang members work together to promote their gang. The Sureño
gang is their biggest rival.
Jackson was an active and participating member of the VFC subset of the Norteño
gang at the time of both April 2017 shootings and the December 2019 shooting.
Hector M. was an active member of the Norteño gang at the time of the April 2017
shootings. Carrillo was an active member of the Sureño gang, South Side Kings subset,
at the time of the April 22, 2017 shooting.
Norteño gang members are required to commit crimes for the benefit of the gang.
This includes eliminating rival gang members. The April 2017 and December 2019
shootings were committed for the benefit and at the direction of the Norteño criminal
street gang with the specific intent to promote, further, or assist in criminal conduct by
gang members.
DISCUSSION
I. Corroboration of Accomplice Testimony
Jackson argues independent evidence did not sufficiently corroborate Hector M.’s
accomplice testimony as required by section 1111 regarding the April 19 and 22, 2017
shootings. He asserts that his convictions on counts 1 through 4 should be vacated. The
People maintain sufficient independent evidence corroborated Hector M.’s testimony.
10.
We agree with the People that the accomplice testimony was sufficiently
corroborated to satisfy section 1111’s requirements.
A. Analysis
Section 1111 provides that “[a] conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.”
“ ‘Corroborating evidence may be slight, entirely circumstantial, and entitled to
little consideration when standing alone. [Citations.] It need not be sufficient to establish
every element of the charged offense or to establish the precise facts to which the
accomplice testified.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 95.) The corroborating evidence standing alone need not be substantial. (People v. Abilez (2007)41 Cal.4th 472, 505
(Abilez).) Moreover, “[t]he evidence ‘need not independently establish the identity of the victim’s assailant.’ ” (People v. Romero and Self (2015)62 Cal.4th 1, 32
.) In order for the jury to rely on the accomplice’s testimony, it must find evidence that “tends to connect the defendant with the commission of a crime in such a way so as to reasonably satisfy the jury that the complaining witness is telling the truth; the corroboration is inadequate if it requires aid from the testimony of the witness to be corroborated in order to connect the defendant with the alleged offense.” (People v. Fujita (1974)43 Cal.App.3d 454, 470
; see also People v. Rissman (1957)154 Cal.App.2d 265, 277
.)
“ ‘The trier of fact’s determination on the issue of corroboration is binding on the
reviewing court unless the corroborating evidence should not have been admitted or does
not reasonably tend to connect the defendant with the commission of the crime.’ ”
(Abilez, supra, 41 Cal.4th at p. 505.) We determine whether accomplice testimony is
11.
sufficiently corroborated by viewing the evidence in the light most favorable to the
judgment. (People v. Pedroza (2014) 231 Cal.App.4th 635, 650.)
It is undisputed that Hector M. was an accomplice within the meaning of section
1111. Hector M.’s testimony implicated Jackson in the attempted murder of Miguel P.
and murder of Carrillo.10 The only question is whether the prosecution presented to the
jury sufficient corroborating evidence connecting Jackson to the shootings.
Jackson specifically identifies several pieces of evidence that he argues did not
corroborate Hector M.’s testimony: (1) video surveillance footage from the shootings;
(2) Jackson’s possession of weapons and ammunition matching the casings from the
scenes; (3) common gang membership; (4) the receipt for purchase of ammunition at
Walmart; and (5) cell phone records. He further suggests Hector M. was an unreliable
witness, seeking to minimize his role to secure leniency. After review of the record, we
conclude the corroborating evidence was sufficient to connect Jackson “to the crime
independently of the accomplice’s testimony.” (People v. Romero and Self, supra, 62
Cal.4th at p. 36.)
When Hector M.’s testimony is set aside, independent evidence connected Jackson
to the weapons used in the April 2017 shootings. A .45-caliber Glock and ammunition
were found in Jackson’s bedroom, which matched casings found at the scene on April 19,
2017. A rifle and .223-caliber ammunition were also found in Jackson’s bedroom, and
the same casings were found at the scene on April 22, 2017. A ballistics expert opined
that the .45-caliber casings found at the scene of the shooting on April 19, 2017, were
fired by Jackson’s Glock. Possession of a weapon like the weapon used in the
commission of the crime provides evidence connecting the defendant with the crime to
sufficiently corroborate the accomplice’s testimony. (People v. Henderson (1949) 34
10 The jury was instructed with CALCRIM No. 335, regarding accomplice
testimony.
12.
Cal.2d 340, 343–346 [accomplice testimony was corroborated in part by evidence that the
defendant purchased a .410 shotgun one day prior to the attempted robbery and a witness
testified she saw the defendant discharge a .410 shotgun at the time of the crime]; People
v. Trujillo (1948) 32 Cal.2d 105, 111 [accomplice testimony corroborated in part by
evidence tending to show that the bullet which killed the victim could have come from
the same gun in the defendant’s possession prior to the crime and which was found in his
room after his arrest].)
A receipt for the purchase of both .45-caliber and .223-caliber ammunition were
found in Jackson’s bedroom after the shootings. Video surveillance at the store where the
ammunition was purchased showed Jackson was present.11 While not overwhelming,
possession of ammunition that matched the same caliber found at the scene of both
shootings, as well as Jackson’s presence at the store at the time of purchase, further
supports the inference that he used the Glock and rifle to perpetrate the shootings,
corroborating Hector M.’s testimony. (People v. Avila (2006) 38 Cal.4th 491, 569[bullet casings found at the scene of the crime corroborated the accomplice’s testimony that he saw the defendant with the same caliber guns on the night of the crime]; People v. Valdez (2012)55 Cal.4th 82, 97, 148
[ballistics evidence tended to connect the defendant to the
crime and provide sufficient evidence of accomplice’s testimony, where law enforcement
found the same caliber bullets in the defendant’s residence as found in the victim’s
head].)
11 The ammunition itself was purchased by a male individual. Video surveillance
showed Jackson also present at the Walmart store at the same time and date the
ammunition was purchased, exiting the Walmart about 30 seconds after the individual
who made the purchase. As noted above, although this evidence may be slight, this tends
to link Jackson with the purchase of ammunition that was the same caliber found in both
shootings.
13.
Hector M.’s testimony was also corroborated by video surveillance. Video of the
shooting on April 19, 2017, showed Hector M.’s car drive through the apartment complex
and multiple muzzle flashes coming from both the car window and return flashes from
near the dumpster. Neighboring residents heard several gunshots. This evidence tended
to verify Hector M.’s testimony that Jackson and P.D. fired their guns over 10 times from
Hector M.’s car and the individuals shot back.
Video surveillance of the shooting on April 22, 2017, showed a man with a dark
complexion that was heavier than Hector M. firing a rifle from the rear passenger seat of
Hector M.’s car. The male individual had a similar build and complexion to Jackson.
The video also showed the same car used in the shooting three days earlier. The
surveillance video, taken together with the rifle found in Jackson’s bedroom, tends to
place Jackson as the rear backseat passenger and connect him to the murder of Carrillo.
(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 303[the evidence is “ ‘sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth’ ”].) Although Jackson could not specifically be identified in the videos, courts have routinely held that evidence independent from accomplice testimony does not need to establish the identity of the defendant. (People v. Romero and Self, supra,62 Cal.4th at p. 32
.)
Cell phone records corroborated Jackson’s connection to the April 2017 shootings
by placing him in the vicinity of the shootings at the approximate time they occurred.
(People v. Hall (2024) 104 Cal.App.5th 1077, 1092 [accomplice’s testimony corroborated
in part by evidence showing the GPS pings on the defendant’s ankle monitor that
matched the accomplice’s testimony as to where the defendant traveled on the day of the
robbery].)
Specifically, on both April 19 and 22, 2017, Jackson’s phone travelled from
Farmersville to the Ivanhoe area during the time of the shootings. There were also
14.
multiple cell phone calls and messages between Hector M. and Jackson during the
relevant time.12 The communication on both days ended shortly before Jackson’s phone
left Farmersville, and there was no further communication between Hector M. and
Jackson until Jackson’s phone was back in Farmersville. This evidence tended to show
that Hector M. and Jackson were together in Ivanhoe during the time of the shootings,
providing sufficient corroborating evidence of Hector M.’s testimony. (People v.
McDermott (2002) 28 Cal.4th 946, 986 [accomplice testimony corroborated in part by
several telephone calls between the defendant and the accomplice that collectively lasted
over an hour on the day before and the day after the murder].)
Jackson’s commission of multiple, similar crimes corroborates Hector M.’s
testimony. (People v. Blackwell (1967) 257 Cal.App.2d 313, 320–321 [“similarity in the commission of crimes in a given locality is … a circumstance tending to corroborate the testimony of an accomplice”]; People v. Romero and Self, supra,62 Cal.4th at p. 34
[evidence of similarly perpetrated crimes corroborates an accomplice’s testimony].) All
three crimes involved drive-by shootings; two victims were rival gang members.13
We acknowledge that Jackson’s gang membership standing alone is insufficient
corroborating testimony. But here there is additional corroborating evidence, including
the video surveillance, Jackson’s phone data, possession of firearms and ammunition, and
commission of drive-by shootings in a similar location, which provided further support
that Jackson had a motive and opportunity to commit the crimes, and did so. (People v.
Rissman (1957) 154 Cal.App.2d 265, 278 [“[t]he entire conduct of the parties, their
12 Jackson and Hector M. exchanged approximately 150 text messages from April 19
through April 22, 2017. There were calls between Hector M. and Jackson hours before
the April 19, 2017 shooting.
13 Miguel P. was a member of the Loco Park Sureños and Carrillo was a member of
the South Side Kings Sureños.
15.
relationship, acts, and conduct may be taken into consideration by the trier of fact in
determining the sufficiency of the corroboration”]; c.f. People v. Pedroza, supra, 231
Cal.App.4th at p. 651 [there was no evidence about the defendant’s acts or conduct,
except that he shared gang membership and associated with the other perpetrators hours
after the crime took place].)
Jackson does not argue that any of this corroborating evidence was improperly
admitted. In these circumstances, the jury’s determination as to whether Hector M.’s
accomplice testimony was sufficiently corroborated is binding unless the evidence does
not tend to connect him to the shootings. (See, Abilez, supra, 41 Cal.4th at p. 505.) Jackson argues that none of the evidence corroborates Hector M.’s testimony because it did not pinpoint his precise location or specifically identify him as the perpetrator. But “[t]he corroborating evidence does not need to independently prove guilt. The evidence simply must support the accomplice testimony and permit a reasonable inference that the accomplice’s testimony is true.” (People v. Hall (2024)104 Cal.App.5th 1077
, 1092.)
Construing the evidence in favor of the judgment, we conclude Hector M.’s
testimony was corroborated by sufficient evidence which tended to connect Jackson with
the commission of the attempted murder of Miguel P. and murder of Carrillo.
B. Jackson’s Constitutional Rights Were Not Violated
Jackson argues his convictions should be set aside because uncorroborated
accomplice testimony violates his constitutional rights. He fails to make any additional
arguments for his position other than there was insufficient evidence to corroborate
Hector M.’s testimony under section 1111.
We nonetheless find that there is sufficient corroborating evidence other than
Hector M.’s accomplice testimony under section 1111. Moreover, even if Jackson made
an adequate constitutional argument, it is without merit because “[t]he accomplice
testimony rule is not constitutionally based.” (In re Mitchell P. (1978) 22 Cal.3d 946,
16.
949.) The rule regarding accomplice testimony under section 1111 is based on English
common law and not formed on any constitutional grounds. (Ibid.)
Federal courts have also rejected the rule. The Ninth Circuit held it is settled law
that “a conviction may be based on the uncorroborated testimony of an accomplice .…
[Citation] This is the rule unless the testimony of the accomplice is incredible or
unsubstantial on its face.” (United States v. Turner (9th Cir. 1975) 528 F.2d 143, 161.)
Jackson’s claim that the alleged uncorroborated accomplice testimony violated his
constitutional rights is meritless.
II. Sufficiency of the Evidence of the Shooting on December 28, 2019
Jackson argues the prosecution introduced insufficient evidence to convict him of
the shooting on December 28, 2019, which violated his right to due process under the
Fifth and Fourteenth Amendments. (See In re Winship (1970) 397 U.S. 358, 364; Jackson v. Virginia (1979)443 U.S. 307
, 315–316.) He further contends that the
eyewitness accounts regarding the shooting were inconsistent, and no further evidence
established he was the shooter. The People maintain the eyewitness accounts and
additional evidence was sufficient to support Jackson’s convictions.
We find the evidence sufficient to support the verdicts.
A. Additional Background
1. Testimony of S.Z.
In an initial interview with law enforcement, S.Z. stated that Jackson was seated in
the left rear passenger seat of the car; she was “100 percent positive that the shooter was
[Jackson].” S.Z. claimed she recognized Jackson as “Big [H]ead” because of his “big ol’
head.”
17.
S.Z. was later interviewed by Sergeant Frausto.14 She observed Jackson drive by
three times in a “gray” or “silver” car, which she described to be “similar to a Lincoln.”
Minutes later, she observed a “blue or gray” car drive by with both driver’s side windows
down. S.Z. saw Jackson sitting in the rear backseat behind the driver. She described
Jackson as a “black male, heavyset, big long hair, and possibly wearing a black shirt.”
S.Z. remarked that she could “clearly see [Jackson’s] face.” She believed he yelled
something at her brother, and immediately thereafter she heard more than 10 gunshots.
S.Z. was shown a photo lineup and she positively identified Jackson as the shooter.
At trial, S.Z. testified she was present at the residence during the shooting on
December 28, 2019, but failed to identify Jackson as the perpetrator or recollect the
details.
2. Testimony of A.Z.
On December 28, 2019, A.Z. identified Jackson as the shooter by “his hair.” Two
minutes prior to the shooting, A.Z. saw Jackson drive by his residence at a high rate of
speed in a “gray car.”
A.Z. claimed at trial that he failed to recall any of the events and did not know
Jackson. Nonetheless, he admitted that he told the truth to law enforcement when he was
first interviewed.
3. Testimony of O.Z.
On December 28, 2019, O.Z. told law enforcement that he was shot at by “the
same daily Norteños.” O.Z. also stated that “the Jacksons” committed the shooting. He
heard shots being fired at his residence and observed a “blue Ford Fusion” travel at a high
speed down the street.
14 These interviews took place on both December 28, 2019, and January 2, 2020. A
summary of S.Z.’s interviews with Frausto is set forth below.
18.
At trial, O.Z. claimed he was “on the street” when he heard gunshots at his house.
O.Z. did not recognize the three individuals in the car who committed the shooting and
denied identifying anyone at the scene.
4. Testimony of F.Z.
On December 28, 2019, F.Z. identified Jackson as the shooter. He saw “the
Jacksons” pass by the residence. A short time later, they passed by again in a “white” car,
the car came to a stop about five feet from his driveway, and Jackson began shooting at
F.Z.’s family. F.Z. picked up his little brother and ran for cover.
F.Z. testified at trial that he was not home at the time of the shooting. Thereafter,
he stated that he was “on the street” about 15 houses down from his residence when he
heard “gunshots.” He did not know who shot at the house and did not know Jackson.
When a video was played of F.Z.’s interview with law enforcement; he confirmed he was
in the video.
5. Standard of Review
The test for sufficiency of the evidence on appeal is whether the prosecution
presented evidence from which a reasonable trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th
1114, 1156.) “Evidence meeting this standard satisfies constitutional due process and reliability concerns.” (People v. Boyer (2006)38 Cal.4th 412, 480
.)
“ ‘ “ ‘[T]he 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.] We ‘ “presume in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” ’ ” ’ ” (Carter, supra, 36 Cal.4th at p. 1156.)
19.
6. Analysis
Jackson argues that the only evidence used to convict him of the shooting on
December 28, 2019, were unreliable eyewitness accounts. First, he maintains the
eyewitness accounts varied regarding the type and color of car he was riding in.
However, these statements had nothing to do with the identification of Jackson.
Moreover, he claims S.Z.’s identification was unreliable because another person
reminded her of Jackson’s name.15 He maintains S.Z. provided an inconsistent statement
because his hair was “pulled back” and not styled in an “Afro” when she positively
identified him in a photo lineup. However, these statements consistently identified
Jackson as the shooter.
A single witness is sufficient to prove the defendant’s identity as the perpetrator of
a crime. (Boyer, supra, 38 Cal.4th at p. 480; Evid. Code, § 411.) A testifying witness’s identification out of court is probative and can be sufficient evidence of the defendant’s guilt even where the witness does not confirm the identification in court. (Boyer, at p. 480; see also Evid. Code, § 1238; see also People v. Johnson (1980)26 Cal.3d 557
,
576–578.) Indeed, “ ‘an out-of-court identification generally has greater probative value
than an in-court identification, even when the identifying witness does not confirm the
out-of-court identification.’ ” (Boyer, at p. 480.)
S.Z. identified Jackson as the shooter and gave a physical description of him that
matched his description. She also identified Jackson in a photographic lineup.
A.Z. identified Jackson as the shooter and confirmed at trial that he told the truth
during his interview with law enforcement on the day of the shooting. F.Z. also
positively identified Jackson at the scene. This evidence alone is sufficient to prove
15 Jackson only argues that S.Z.’s eyewitness account was unreliable and
inconsistent; he fails to address any other eyewitness accounts.
20.
Jackson’s identity as the shooter on December 28, 2019. (See, Boyer, supra, 38 Cal.4th at
p. 480.)
The prosecution also offered evidence that S.Z., A.Z., and F.Z. may have had a
motive to falsely recant their identification of Jackson. A gang expert testified that
Jackson was a participant in the Norteño VFC gang at the time of the December 2019
shooting. The residence was targeted because it was associated with a Sureño gang
member. From this evidence, a jury could infer that S.Z., A.Z., and F.Z. told the truth to
responding officers at the scene but recanted their statements at trial because of fear or
intimidation by rival gang members. (See, e.g. People v. Cuevas (1995) 12 Cal.4th 252, 274–275; see also People v. Chavez (1980)26 Cal.3d 334, 364
[unlike cases where “the record contained no concrete basis to credit the witness’ prior identification over his trial testimony, the prosecution … presented evidence which both explained and discredited the witness’ inconsistent testimony at the time of trial”]; People v. Ford (1981)30 Cal.3d 209
, 213–214 [in the circumstances of this case the repudiation of the out-of-court
identification itself provided the jury with a basis on which it could have discredited the
identifying witness’s trial testimony in favor of his out-of-court identification; the reason
for the witness’s failure to make a positive identification at trial was that in the interim he
had become reluctant to testify against the defendant].)
Moreover, “when the circumstances surrounding the identification and its weight
are explored at length at trial, where eyewitness identification is believed by the trier of
fact, that determination is binding on the reviewing court.” (In re Gustavo M. (1989) 214
Cal.App.3d 1485, 1497; see People v. Whisenhunt (2008)44 Cal.4th 174, 200
[an
appellate court does “ ‘not reweigh evidence or a witness’s credibility’ ”].) Here, defense
counsel cross-examined the witnesses and explored the reasons for not confirming their
out of court identification. The jury was also instructed with CALCRIM No. 226, which
discussed how to evaluate eyewitness testimony. It was up to the jury to determine
21.
whether the eyewitness statements were credible, and any contradictions or other
weaknesses in the witnesses’ testimony were matters to be argued to the trier of fact.
(See People v. Anderson (2007) 152 Cal.App.4th 919, 939.)
Further, eyewitness evidence was not the only evidence linking Jackson to the
crime. The eyewitness identification was corroborated by other independent evidence.
(See Johnson, supra, 26 Cal.3d at pp. 578–579 [although eyewitness testimony at trial
was inconsistent and exaggerated from the witness’s prior testimony, where there was
other corroborating evidence that the crime occurred, our high court found that
substantial evidence supported the defendant’s conviction].)
For example, on the evening of December 28, 2019, Jackson sent a text message
and a picture indicating he suffered a gunshot wound, together with a picture of the
December 28, 2019 crime scene. He also sent text messages that indicated he harbored
negative feelings about F.Z. From this evidence, a reasonable jury could infer that he
suffered a gunshot wound and was at the scene of the crime on December 28, 2019. A
reasonable jury could also infer that Jackson had a motive to shoot at the residence
because of his ill will toward F.Z.
Evidence established that two vehicles drove by the residence on the day of the
shooting, December 28, 2019. Jackson initially drove by in a “gray” car, similar to a
Lincoln. Then, Jackson drove by in the rear passenger seat of a “blue” Ford Fusion.
Jackson was seen standing next to a “blue Ford Fusion” at a gas station a few days prior
to the shooting. A “gray” Lincoln was parked in front of the “Jackson family” residence
after the shooting occurred. Viewed in the deferential light required, the jury’s decision
that this circumstantial evidence, along with the various eyewitness accounts, constituted
sufficient evidence that Jackson committed the shooting on December 28, 2019, was
sound.
22.
Jackson’s arguments in support of a different conclusion focus on the
inconsistency of the police investigation. Jackson contends there was no actual evidence
that placed him in the “blue Ford Fusion” or the “gray” car on the day of the shooting.
However, his arguments are misplaced. Our question is not whether the prosecution’s
case could have been stronger, but whether there is a minimum of substantial evidence to
support the jury’s decision “beyond a reasonable doubt.” (Abilez, supra, 41 Cal.4th at p.
504.)
In sum, there was substantial evidence from which a reasonable jury could
conclude, beyond a reasonable doubt, that Jackson committed the shooting on December
28, 2019, to support his convictions on counts 5 through 10.
III. Admission of Enhanced Videos at Trial
Jackson claims he was ambushed by the introduction of an enhanced surveillance
video of the April 22, 2017 shooting at trial violating the discovery statute16 and his state
and federal constitutional rights. He contends he was only able to review the video on
the same day it was introduced into evidence, and thus he was denied a fair trial and the
right to present a defense. The People respond that Jackson’s fundamental constitutional
rights were not violated, and even assuming there was a violation, any error was harmless
beyond a reasonable doubt.
There was no violation on this record.
A. Additional Background
During motions in limine, the prosecution sought to admit enhanced surveillance
video footage to aid the jury when viewing the evidence.
16 While Jackson only mentions the statute governing discovery in criminal cases
under section 1054 et seq., considering his entire argument and his citation to People v.
Hughes (2020) 50 Cal.App.5th 257, we construe this reference to involve an alleged
violation of the discovery statute in addition to his constitutional claim.
23.
Before trial, six surveillance videos were admitted by the prosecution showing the
shooting on April 22, 2017. During trial, the prosecution enhanced two of those videos.
The prosecution provided defense counsel with the enhanced videos and still photographs
from the videos the next day. Defense counsel and the prosecutor watched the enhanced
videos together for the first time the same day they were introduced at trial.
The jury was shown the enhanced videos. Tulare County Sheriff’s Detective
Brandon Van Curen testified regarding what they showed. The prosecution also showed
the jury several still photographs from the enhanced videos. There was no objection.
Upon completion of Van Curen’s testimony outside the jury’s presence, defense
counsel informed the trial court that it wanted to consult a technology expert and
indicated that he may file a motion to continue. The prosecutor did not object to defense
counsel obtaining an expert.
The following week, defense counsel informed the trial court that it had consulted
a technology expert and would let the parties know by the end of the week if he sought to
do anything additional with the enhanced video.
The prosecutor sought to admit the enhanced videos into evidence. Jackson’s
counsel did not object; he reserved an objection stating, “[t]he damage is already done.”
The trial court admitted the videos into evidence.
There were no further objections or requests regarding the enhanced videos.
B. Jackson’s Claim is Forfeited
The People argue Jackson forfeited his challenge to the admission of the enhanced
surveillance video. We agree.
To preserve an appellate challenge to the admission of evidence, a defendant must
make a timely objection to the evidence, making “clear the specific ground of the
objection.” (Evid. Code, § 353, subd. (a); People v. Seijas (2005) 36 Cal.4th 291, 302.)
“An objection is sufficient if it fairly apprises the trial court of the issue it is being called
24.
upon to decide.” (People v. Scott (1978) 21 Cal.3d 284, 290.) Moreover, to preserve a constitutional claim arising out of a trial court’s decision to exclude or admit evidence, the defendant must raise the constitutional claim in the trial court. (People v. Riggs (2008)44 Cal.4th 248, 292
.)
Defense counsel failed to object to the admission of the enhanced videos on the
grounds now asserted and failed to raise any constitutional claims at trial. While defense
counsel reserved an objection and complained the enhancements damaged his case, no
further issues or specific objections were raised. Jackson’s claim is forfeited.
For the first time in his reply, Jackson argues that if the issue is forfeited, we
should reach the merits of his claim because his counsel rendered ineffective assistance.
Generally, arguments made for the first time in a reply brief need not be addressed by the
reviewing court. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) But because the People addressed the merits of Jackson’s contentions, we exercise our discretion to reach the merits too. (See, e.g. People v. Williams (1998)17 Cal.4th 148, 161, fn. 6
[“An
appellate court is generally not prohibited from reaching a question that has not been
preserved for review by a party. [Citations.] Indeed, it has the authority to do so.”].)
C. Standard of Review
Ordinarily, an appellate court reviews discovery matters for abuse of discretion.
(People v. Moya (1986) 184 Cal.App.3d 1307, 1312.) When determining whether a trial court has abused its discretion, the appellate court will not substitute its judgment for that of the trial court. (Ibid.) Discretion means sound judgment of the court exercised in accordance with the proper legal authority. (People v. Giminez (1975)14 Cal.3d 68, 72
.)
D. No Violation of the Discovery Statute
It is settled that section 1054 et seq. was amended by Proposition 115 to include
“both constitutional and statutory language authorizing reciprocal discovery in criminal
25.
cases.” (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 364.) These amendments were
made in order to provide a criminal defendant with a fair and speedy trial. (Ibid.)
Section 1054.1, subdivision (f) requires the prosecutor to disclose to the defense
“[r]elevant written or recorded statements of witnesses or reports of the statements of
witnesses whom the prosecutor intends to call at the trial, including any reports or
statements of experts made in conjunction with the case, including the results of …
scientific tests, experiments, or comparisons which the prosecutor intends to offer in
evidence at trial.” Disclosure must be made at least 30 days before trial, but “[i]f the
material and information becomes known to, or comes into the possession of, a party
within 30 days of trial, disclosure shall be made immediately.” (§ 1054.7.)
In People v. DePriest (2007) 42 Cal.4th 1, 37 (DePriest), the prosecution
discovered two new partial shoe prints on the eve of trial and immediately provided the
evidence to the defense. The defendant argued that the new evidence violated the
prosecution’s duty to provide discovery in a timely fashion. (Ibid.) He asked for a
continuance and a mistrial if a continuance was not granted. (Ibid.)
Our Supreme Court concluded that there was no discovery violation or unfairness
requiring either a continuance, mistrial, or exclusion of the shoe print evidence.
(DePriest, supra, 42 Cal.4th at p. 37.) The court found that “the discovery statutes did not ‘mandat[e]’ a continuance or other sanction” because there was no unreasonable delay, and the prosecutor informed the trial court and defense counsel of the evidence soon after he obtained it. (Id. at p. 38; accord People v. Panah (2005)35 Cal.4th 395
, 459–460 [no violation of the discovery statutes or constitutional error by prosecution failing to disclose a pathologist’s new report just prior to testimony when the report was prepared during trial and provided to the defendant at the earliest possible opportunity]; see People v. Verdugo (2010)50 Cal.4th 263, 287
[no violation of the reciprocal-
discovery statute when “[t]he prosecutor produced the notes to the defense the same
26.
morning that he received them, which satisfies the statutory requirement of immediate
disclosure of materials that become known during trial”].)
Here, the surveillance video was enhanced during trial and was immediately
disclosed to defense counsel. Indeed, the prosecutor and defense counsel “watched them
all together for the first time.” Defense counsel consulted an expert regarding the
enhanced videos. But no further action was taken.
Jackson contends that the prosecution had a duty to turn over the video
surveillance evidence to the defense, any expert statements about the evidence, and
enhancements before trial began.17 (§ 1054.1, subds. (c) and (f).) There is no
requirement that disclosure occur in all circumstances prior to trial. (§ 1054.7.) Jackson
received the original surveillance videos prior to trial, and the enhanced videos were
provided to Jackson at the earliest possible opportunity. This was proper. (DePriest,
supra, 42 Cal.4th at p. 37.)
Jackson asserts his case is like People v. Hughes, supra, 50 Cal.App.5th at page
278, where the court grappled with the issue of whether notes containing accident
reconstruction calculations and diagrams serving as basis for the expert’s testimony were
disclosed untimely in violation of section 1054.1, subdivision (f). The Fourth District
found that the prosecution failed to comply with the statutory disclosure requirements
under section 1054. (People v. Hughes at p. 281.) The court reached this conclusion
because the “ ‘ “need for pretrial discovery is greater with respect to expert witnesses
than it is in the case of ordinary fact witnesses.” ’ ” (Id. at p. 279.) The prosecutor also
knew the expert had been working on the case and taking notes for a few months yet still
17 Jackson erroneously cites section 1054, subdivisions (c) and (f). There is no
section 1054, subdivision (f). Moreover, section 1054, subdivision (c) states that the
purpose of the discovery statute is “[t]o save court time in trial and avoid the necessity for
frequent interruptions and postponements.” Thus, we assume Jackson meant to cite
section 1054.1, subdivisions (c) and (f).
27.
failed to disclose the notes until after the trial began, increasing the seriousness of the
error. (Id. at p. 280.)
Our case is distinguishable. The enhanced videos were provided to defense
counsel immediately after they were made. This is not an issue where the prosecution
had discoverable material for months prior to trial, but did not disclose it until after the
trial started. (People v. Hughes, supra, 50 Cal.App.5th at pp. 279–280.) This is also not
a situation involving expert discovery. (Id. at p. 279; see also, Zellerino v. Brown (1991)
235 Cal.App.3d 1097, 1117.)
The prosecution “has no general duty to seek out, obtain, and disclose all evidence
that might be beneficial to the defense.” (In re Littlefield (1993) 5 Cal.4th 122, 135; People v. Hogan (1982)31 Cal.3d 815, 851
[no duty to obtain evidence or conduct tests
on behalf of the police or prosecution or “ ‘gather up everything which might eventually
prove useful to the defense’ ”].) Thus, although Jackson complains the enhanced videos
surprised him, the prosecution was not required to perform the enhancements sooner.
This is especially true because Jackson was put on notice the prosecution intended to
enhance the surveillance videos to aid the jury in viewing without objection, and the
videos were provided to Jackson prior to trial. Jackson’s counsel had equal opportunity
to perform the enhancements.
E. Jackson’s Constitutional Rights Were Not Violated
We also reject Jackson’s claim of constitutional error. “[E]vidence is not
suppressed unless the defendant was actually unaware of it and could not have discovered
it ‘ “by the exercise of reasonable diligence.” ’ ” (People v. Salazar (2005) 35 Cal.4th
1031, 1049.) This is all that is needed to guarantee a fair trial. (Ibid.) Moreover, “ ‘due process concerns itself with the fairness of the trial as a whole.’ ” (People v. Ochoa (1998)19 Cal.4th 353, 474
.)
28.
Jackson had the videos before trial; he knew the prosecution intended to make
enhancements for ease of viewing. Defense counsel consulted an expert regarding the
enhanced videos and decided no further action was necessary. Jackson could not have
been caught off guard to such an extent that we might conclude he was unable to prepare
a meaningful defense and denied due process and a right to a fair trial. There was no
constitutional violation.
F. Jackson Suffered No Prejudice
Even if error occurred, either by statutory or constitutional compulsion, it was
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The burden is on the defendant “ ‘to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.’ ” (People v. Thompson (2016)1 Cal.5th 1043, 1103
.)
Jackson sought no continuance, and he made no showing that his defense would
have been different had he been provided the enhanced videos earlier. Because Jackson
had the surveillance videos and was put on notice the prosecution intended to enhance
them before trial, he was aware of both the existence of the evidence and its potential
significance. He had sufficient opportunity to fairly meet the evidence when it was
presented to the jury.
Jackson’s counsel also had the ability to cross-examine the testifying witnesses
regarding the enhanced videos. Both witnesses were subject to recall. (People v.
Verdugo, supra, 50 Cal.4th at p. 283 [a violation of reciprocal discovery statute may be
cured where the defendant’s attorney is allowed to recall a witness for further cross-
examination].) The failure to recall the witnesses cannot be attributed to the prosecutor’s
belated production of the enhanced videos containing information already in Jackson’s
possession prior to trial.
29.
Jackson fails to complain about the admission of still photographs extracted from
the enhanced videos. The photos depicted the same images and thus, admission of the
videos could not have resulted in prejudice; without an affirmative showing of prejudice,
there is no ineffective assistance of counsel
IV. Admissibility of Testimony Describing Surveillance Videos
Jackson argues the trial court violated his state and federal due process right to a
fair trial by allowing Detectives Hebrard18 and Van Curen to testify about what they
observed in the surveillance videos. He maintains the testimony amounted to
impermissible expert opinion testimony.
The People respond Jackson forfeited this claim. Reaching the merits, the
testimony was proper, and any error was invited or harmless. We agree with the People.
A. Additional Background
On cross-examination, Detective Hebrard observed gunshots from the passenger’s
side of the car. He saw two suspects, “[o]ne appeared to be a Hispanic male.” The other
individual in the backseat “appeared to be wearing a Fedora-style hat.” The driver
appeared to be wearing a “white shirt.”
After viewing the video “many times,” Van Curen opined that shots were fired
from the passenger seat and from the backseat of the car. Van Curen initially could only
see a “silhouette” of the individual in the backseat.
After the video was enhanced and the images enlarged, Van Curen saw the back
passenger wearing a “Fedora-style” hat. He further identified the back passenger as
“dark complected, possibly an African-American” who was “more heavyset than [Hector
M.] based off of the facial features.” Van Curen also saw that the backseat passenger was
firing a “rifle” because it was longer than a handgun.
18 Tulare County Sheriff’s Detective Robby Hebrard.
30.
On cross-examination, Van Curen believed the back passenger was Jackson in the
video because of “all the evidence” in the case. Van Curen further identified Jackson in
the photo because he was “a darker-complected” with “a larger body build than …
[Hector M.]”
There was no objection to any of the testimony at trial.
B. Jackson Forfeited His Claim
Our Supreme Court has routinely held that a trial counsel’s failure to object to an
evidentiary error on the same ground asserted on appeal forfeits the issue. (Evid. Code,
§ 353; People v. Dykes (2009) 46 Cal.4th 731, 756.) Jackson failed to object at any time
during Hebrard’s and Van Curen’s testimonies. Rather, after Van Curen’s testimony,
defense counsel expressly stated he had “[n]o objection.”
Jackson maintains his counsel compelled a timely objection to the testimonies of
Hebrard and Van Curen when he reserved an objection and complained the enhanced
videos were damaging to his case. We disagree. If Jackson’s counsel believed that the
testimonies of Hebrard and Van Curen were inadmissible on the basis he now raises on
appeal, he was required to say so to preserve the contention for review.19 Instead, he
remained silent and registered no objection to the testimony itself. Jackson forfeited his
claim that Hebrard and Van Curen rendered inadmissible expert opinion testimony.
Jackson’s contention that the admission of the evidence rendered his trial
fundamentally unfair in violation of his federal and state constitutional rights is also
forfeited. (See People v. Riggs, supra, 44 Cal.4th at p. 292[“To the extent defendant on appeal raises a federal constitutional claim distinct from his claim that the trial court 19 While defense counsel reserved an objection for late discovery, he never followed up with a further objection nor did he object on the specific grounds now raised on appeal. (People v. Scott, supra,21 Cal.3d at p. 290
[an objection must fairly appraise the
trial court of the issue it is being called upon to decide].)
31.
abused its discretion … he forfeited this claim by failing to identify that ground in his
objections to the trial court”].)
Jackson argues that if his claims are forfeited, his counsel rendered ineffective
assistance. Thus, we will reach the merits of his contention. (People v. Upsher (2007)
155 Cal.App.4th 1311, 1325 [the reviewing court does not need to decide whether
counsel’s performance was deficient before considering the prejudice suffered by the
defendant, “ ‘ “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice … that course should be followed” ’ ”].)
C. Standard of Review
Jackson argues the trial court erred when it allowed Hebrard and Van Curen to
testify as to the content shown in the surveillance videos, arguing the testimony was an
inadmissible expert opinion. Such a ruling is reviewed for abuse of discretion. (People v.
Mixon (1982) 129 Cal.App.3d 118, 132.)
D. Invited Error
The People argue that defense counsel elicited the entirety of Hebrard’s testimony
and a portion of Van Curen’s testimony about which Jackson now complains and
therefore any error was invited. We agree.
“ ‘The doctrine of invited error is designed to prevent an accused from gaining a
reversal on appeal because of an error made by the trial court at his behest. If defense
counsel intentionally caused the trial court to err, the [defendant] cannot be heard to
complain on appeal .… [I]t also must be clear that counsel acted for tactical reasons and
not out of ignorance or mistake.’ In cases involving an action affirmatively taken by
defense counsel, we have found a clearly implied tactical purpose to be sufficient to
invoke the invited error rule.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
In People v. Gutierrez (2002) 28 Cal.4th 1083, 1138, the defendant contended the
trial court erred in ruling that he could be impeached with a prior conviction. However,
32.
the court reasoned that defense counsel first elicited before the jury the fact that the
defendant had been in prison and was imprisoned for his assault on a peace officer. (Id.
at p. 1139.) The court held that the doctrine of invited error barred the defendant from
challenging the trial court’s ruling on appeal. (Ibid; accord People v. Williams (2009) 170
Cal.App.4th 587, 620 [any error was invited and held harmless where testimony about
which the defendant complained on appeal was elicited by his own counsel at trial].)
Jackson’s counsel asked Hebrard about identifying characteristics of any of the
individuals in the car on the night of the shooting. Because Jackson’s counsel made a
tactical choice to initiate questioning regarding the physical characteristics of the
individuals Hebrard saw in the videos, any error was invited.
Jackson’s counsel also questioned Van Curen about whether he believed Jackson
was the perpetrator in the video and asked about identifying characteristics. Given the
nature of the questions, we find that this was again part of defense counsel’s trial strategy
and directed to elicit a certain answer.
The admission of Hebrard’s and Van Curen’s testimonies on cross-examination
was invited.
E. The Testimony Was Admissible
In any event, the trial court did not err. A lay witness may offer an opinion if it is
“[r]ationally based on the perception of the witness” and “[h]elpful to a clear
understanding of [the witness’s] testimony.” (Evid. Code, § 800.) “[T]he identity of a
person is a proper subject of nonexpert opinion.” (People v. Perry (1976) 60 Cal.App.3d
608, 612 (Perry).)
In contrast, an expert witness may offer opinion testimony if the subject matter is
“sufficiently beyond common experience” such that the expert’s opinion “would assist
the trier of fact.” (Evid. Code, § 801, subd. (a).) An expert’s opinion must be based on
matter (including his special knowledge, skill, experience, training, and education) that
33.
the witness personally knows or perceives—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. (Id. at subd. (b).)
Our Supreme Court held that identifying a criminal defendant in surveillance
photographs or videos is the proper subject of lay witness opinion testimony. (People v.
Leon (2015) 61 Cal.4th 569, 601; seePerry, supra,
60 Cal.App.3d at p. 612
[“The identification testimony of the witness viewing the film of the robbery may be considered lay opinion on the question of the identity of the person depicted therein inasmuch as the witness was not qualified as an expert in film reading or interpretation”]; People v. Son (2020)56 Cal.App.5th 689
, 695–697 (Son).)
Jackson argues the testimony could not possibly be the subject of a lay witness
because Hebrard and Van Curen were not percipient witnesses to the shooting. However,
the Third District was presented with a similar argument and rejected it. In Perry, the
defendant argued that the officers’ identification had to be based on their actual
perception of a crime. (Perry, supra, 60 Cal.App.3d at p. 613.) The court disagreed and
found it proper for the officers to base “their identification opinion upon their prior
contacts with [the] defendant, their awareness of his physical characteristics on the day of
the [crime], and their perception of the film taken of the events.” (Ibid.) Perry focused
on the “same rationale” which permits nonexpert testimony on identity of handwriting
“as an aid in identification of the defendant as the miscreant.” (Id. at p. 614.) The court
applied that rationale to the “evidence of the identity of a pictorially depicted subject
when such evidence is based upon personal knowledge of the person’s physical
characteristics at the time of the film depiction.” (Ibid.)
Similarly, in Leon, supra,61 Cal.4th 569
, our Supreme Court also rejected the
defendant’s argument that post-arrest contact between the detective and the defendant
was insufficient to support the detective’s opinion that the defendant was shown in
34.
surveillance videos of two robberies, deeming it a “distinction without a difference.” (Id.
at pp. 600–601.) The Supreme Court explained, “It is undisputed [the detective] was
familiar with [the] defendant’s appearance around the time of the crimes.” (Id. at p. 601.)
The detective had contact with the defendant after he was arrested, and “[q]uestions about
the extent of [the detective’s] familiarity with [the] defendant’s appearance went to the
weight, not the admissibility, of his testimony.” (Ibid.) “Moreover, because the
surveillance video was played for the jury, jurors could make up their own minds about
whether the person shown was [the] defendant.” (Ibid.) The Leon court committed no
abuse because the detective’s testimony was based on his relevant personal knowledge
and aided the jury. (Ibid.)
This court also upheld the identification of the defendant in a robbery surveillance
photograph as lay witness testimony by officers who did not witness the incident but had
prior “personal knowledge” of the defendant’s appearance, which aided the jury in
identifying the defendant. (People v. Mixon, supra, 129 Cal.App.3d at pp. 130, 135.)
We apply these authorities to our case. Hebrard’s and Van Curen’s testimonies did
not amount to expert witness opinion testimony.
Turning to whether the testimony was that of a lay witness, Hebrard and Van
Curen essentially described what they saw in the video. Neither Hebrard nor Van Curen
identified Jackson as the perpetrator on direct examination; they only pointed out the
characteristics of the backseat passenger based on what was played in the video.20 We
fail to see any lay witness opinions expressed in Hebrard’s and Van Curen’s testimonies.
20 At no point did Van Curen or Hebrard identify Jackson from the video on direct
examination. Although Van Curen identified Jackson on cross-examination, as stated
above, this argument fails based on invited error. Nonethless, it was proper. (Perry,
supra, 60 Cal.App.3d at p. 613.) Hebrard’s testimony did not identify Jackson at all but
only acknowledged that the backseat passenger appeared to be “wearing a Fedora-style
hat.”
35.
As the Son court soundly asked, “[w]hy does it become an opinion just because [the
detective] saw it in a video?” (Son, supra, 56 Cal.App.5th at p. 697.)
But supposing Hebrard’s and Van Curen’s testimonies constituted lay witness
opinion testimony, we conclude it was admissible because it was helpful to the jury.
(See, Son, supra, 56 Cal.App.5th at p. 697 [the standard as to admissibility of lay opinion
testimony is whether it is helpful to the trier of fact].) Hebrard and Van Curen both
watched the video several times and were able to describe characteristics from the
individuals in the video that may have been missed by the jurors who only watched the
video a single time in court. Van Curen testified that Jackson’s build was heavier, and he
had a darker complexion than Hector M., which aided the jury in differentiating the
perpetrator from the other individuals in the car. Hebrard’s and Van Curen’s knowledge
of firearms also helped the jury identify the firearm and the bullet strikes.
The trial court did not abuse its discretion in admitting the testimonies of Hebrard
and Van Curen because even if it was lay witness opinion testimony, it was helpful to the
jury. And any improper weight was counterbalanced by the fact that the surveillance
video was played for the jurors and thus, they “could make up their own minds about
whether the person shown” in the video was Jackson. (Leon, supra, 61 Cal.4th at p. 601.)
There was no state law error or violation of Jackson’s constitutional rights.
F. No Prejudice
Jackson argues he suffered prejudicial error by the admission of the testimony. He
maintains that the error was of constitutional magnitude because he was denied the right
to a fair trial, and thus we should analyze the error under Chapman v. California, supra,
386 U.S. at p. 24.
Evidentiary errors regarding the admissibility of witness testimony are generally
analyzed under the harmless error standard that asks whether there is a reasonable
probability that the error affected the outcome as set forth in People v. Watson (1956) 46
36.
Cal.2d 818, 837. (See People v. Melton (1988) 44 Cal.3d 713, 745 [where trial court
erred in admitting lay witness testimony, any error held harmless under Watson
standard].)
Nonetheless, admission of the testimony was harmless under either standard.
Because we find no prejudice on this record, Jackson’s claim of ineffective assistance of
counsel necessarily fails.
As we discussed, the surveillance videos were shown to the jury for their own
interpretation. (Leon, supra, 61 Cal.4th at p. 601.) The jury was aware that neither
Hebrard nor Van Curen were witnesses to the shooting; their testimony was based only on
viewing the video and their knowledge of Jackson’s characteristics.
Hebrard did not identify Jackson as the shooter. Van Curen also did not identify
Jackson as the shooter until specifically asked by defense counsel on cross-examination
whether he believed the individual in the passenger backseat was Jackson. Van Curen
also explained the reasons why he believed it was Jackson and that his opinion was based
on all the evidence presented in the case. This is not a situation where the detectives
blindly identified Jackson without reason.
The jury was provided with the proper instructions on how to evaluate Hebrard’s
and Van Curen’s testimonies. CALCRIM Nos. 332 and 333 were given, which instructed
the jury with how to evaluate expert and lay witness opinion testimony. CALCRIM
No. 226 provided various factors for the jury to consider in evaluating any witness’s
testimony. We presume the jury understood and followed the instructions. (People v.
Sanchez (2001) 26 Cal.4th 834, 852.)
The evidence adduced at trial supporting guilt was strong. The April 22, 2017
shooting turned on the corroborated accomplice testimony, firearm and ammunition
evidence, phone records, and the actual surveillance video itself, which showed an
37.
individual with similar characteristics as Jackson shooting a rifle from the rear passenger
seat of Hector M.’s vehicle.
In view of the instructions given and all the evidence presented at trial, any
assumed error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
GUERRA, J.†
WE CONCUR:
HILL, P. J.
DETJEN, J.
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
38.