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November 29, 2010


The opinion of the court was delivered by: Rushing, P.J.

P. v. Lovelace CA6


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Terrance Lovelace was convicted of criminal offenses after he stole a car from an salesman during an ostensible test drive. On appeal he challenges the imposition of an enhancement for personal use of a firearm. He contends that the trial court erred by excluding expert testimony to the effect that a firearm such as was described by the victim may be indistinguishable from a "replica" weapon which is not a firearm at all. We find no error in the exclusion of the proposed testimony. We therefore affirm the judgment.


Defendant was charged in a seven-count amended information with (1) carjacking where the victim is a passenger (Pen. Code, § 215), including personal use of a firearm (id., § 12022.53, subd. (b)); (2) fleeing from a police vehicle (Veh. Code, § 2800.1, subd. (a)); (3) drunk driving (Veh. Code, § 23152, subd. (a)); (4) driving with excessive blood alcohol content (Veh. Code, § 23152, subd. (b)); (5) hit-and-run driving with property damage (Veh. Code, § 20002, subd. (a)); (6) driving with suspended license (Veh. Code, § 14601.1, subd. (a)); and (7) a second count of hit-and-run driving with property damage. It was further alleged that he had sustained a prior felony conviction resulting in imprisonment.

The only issue on this appeal concerns the carjacking charge, and more specifically, the firearm-use enhancement. The other charges arose from defendant's exploits while in possession with the stolen vehicle. We summarize the evidence only as it bore on the one charge at issue here.

On March 6, 2009, Farzad Rad was working as a salesman at a San Jose auto dealership. On that day, he testified, defendant appeared at the dealership and expressed an interest in purchasing a 2008 Dodge Charger then on the lot. Rad described defendant as unkempt, unshowered, smelling dirty, redolent of alcohol and marijuana, and seemingly under the influence of alcohol or drugs. However defendant said that "he just got out of the military and received a bonus and he was going to buy the vehicle with the bonus he had received from the military." Rad was unable to verify this claim but, falling prey to his own optimism and pressure from above, agreed to a test drive.

Because defendant said he did not have his license with him, Rad said he would have to drive. They got into the car and Rad drove it to a light rail parking lot "where we demo all our vehicles," i.e., open the doors and display the vehicle's features. As Rad was doing this, defendant said a couple of times "that he already liked the vehicle and if he just got to dr[i]ve it that he was going to buy the vehicle from me that day." After defendant assured him that he was validly licensed to drive, Rad agreed. While defendant drove, he sang along with the radio. Rad had told him to take a very specific route--about a four-minute drive--back to the dealership. Defendant instead drove into an apartment complex, telling Rad that he lived there and that if Rad would wait in the car, he would get his wallet to purchase the car. He drove into a "dead end at a kind of alleyway with apartments on both sides." He asked Rad to help him move two garbage cans that were obstructing the car. Rad took the keys from the ignition and got out of the car. As he moved the cans, defendant ran to the driver's side of the car and got in. Upon realizing that there was no key in the ignition, he got out of the car and came towards Rad, appearing angry.

Rad gave conflicting accounts of ensuing events. On direct examination he testified that defendant simply "came around the vehicle and grabbed the keys from me," telling him to sit on the ground Asked if he noticed any weapons, Rad testified, "I don't think he had any, although I might have thought he did, but he didn't." He suggested that he might have confused the occasion with a robbery he had suffered two weeks earlier at a park.*fn1 He testified, "I've had time to think about it and I believe that he didn't have a weapon." He said that he had been "very scared" and "might have thought that there was something that wasn't there"--though he resisted the suggestion that he had "imagined" a gun. He also said that as defendant approached him, he closed his eyes or flinched out of fear.

Rad acknowledged telling officers that defendant had threatened him with a gun. When shown Officer Baza's handgun after the incident, he had said that defendant's appeared to be "the same type of weapon," though he believed defendant's "had duct tape on it." He did not remember reporting that defendant had "held the gun in his right hand with his index finger on the slide and his middle finger on the trigger." When Detective Mizuhara had questioned him a couple of weeks after the incident, Rad had said there was a weapon. But, he explained, Mizuhara had told him to "think about" the gun "very well because it's very important to the case."*fn2 Rad testified that "starting that day I started questioning myself on what I had seen."

After a series of sidebar conferences the prosecutor confirmed that Rad was not testifying by choice, and asked him why not. After an allusion to missing work, he said that he was "scared of seeing Mr. Lovelace" and didn't want to do so "ever again." He had received a threatening call at work, and though he thought it was probably a co-worker "play[ing] around," he was "actually scared." He and his wife had moved, and he had quit that job, "because that was the last place that that gentleman had seen me working at, and I didn't--I didn't want to have any issues with him after the event." He had also been told by Detective Mizuhara that defendant was a gang member. Rad said he was afraid of gang members. He did not "like testifying against gang members whatsoever."*fn3

Continuing his narrative on direct examination, Rad said that after defendant took the keys he told Rad to sit on the ground, got in the car, rolled down all the windows, turned on the music, and drove away. Rad went into the middle of the street and hailed passing drivers until one of them called 911. An officer approached in his car, and Rad made his first report to police.

Officer Baza testified that he took Rad's initial statement. Rad appeared "nervous," "[v]isibly scared," and was shaking. He reported that the person who took the vehicle had a weapon.*fn4 He described it as a black semiautomatic and a Glock-type firearm.*fn5 He said it looked like Baza's sidearm, a Glock 19, which is a nine millimeter semiautomatic. Rad mentioned silver duct tape on the handle. He said that the person held the gun in his right hand with his index finger on the slide and his middle finger on the trigger area. He said that in response to seeing this gun, he had gotten out of the car and given the keys to the suspect.

Detective Mizuhara testified that when he interviewed Rad six days after the incident, Rad again reported that the person who took his car used a firearm. Asked what Rad said that "led you to believe that he did not seem to be confused about what happened to him," the detective replied, "He said that the gun that was brandished at him was metallic and heavy." Rad said that he actually felt the gun--"that the barrel of the firearm was pushed against his stomach." He said he was 100 percent positive "that this was a handgun that he saw." He told Mizuhara he had a background with firearms; that he had previously used them; and that he was familiar with different types. The court properly struck this statement as hearsay, presumably because it was not inconsistent with anything Rad had said in his testimony and was therefore outside the hearsay exception for prior inconsistent statements. (See Evid. Code, § 1235.) The court admonished the jury to "disregard any conversation about his familiarity of firearms."

On cross-examination, however, defense counsel threw wide open the door he had just closed by examining Mizuhara in detail about Rad's statement that "he was familiar with guns." Rad had told him that "just by its overall appearance" the object "was a real firearm." Counsel asked how Rad said he had "gained that familiarity," producing the response, "Shooting 'em." Rad told him he had fired the more "exotic firearms that were more commonly used in the European nations," like "FNFAL's."*fn6 Mizuhara testified that Rad had fired both rifles and handguns, including semiautomatic handguns.

Counsel asked Mizuhara what Rad had told him that "indicated this was an actual firearm," and Mizuhara replied, "He told me that it was metallic, it was heavy." Rad had not held the object. His contact with it consisted of its being "placed against his abdomen." He did not say whether he had seen any ammunition for the gun, or whether the slide had been pulled or manipulated.

Defense counsel asked the detective whether he himself was "familiar with replica firearms." Mizuhara said that he was, but that he had never been trained in differentiating them. Asked to describe the distinction, he said, "One is made out of plastic--generally made out of plastic and is lighter and often has a--some type of discoloration or some coloration to specifically distinguish it from an actual firearm." Asked on recross whether some replicas "are made of metallic materials," he replied, "Not that I'm familiar with. I don't know." When counsel asked another question on similar lines, the court sustained a prosecution objection on "foundational grounds for the officer's expertise in this area." Questioned further on his training, Mizuhara said that he had used a replica firearm in his police training for perhaps a few hours. It was an "air actuated firearm . . . commonly called an air soft." It was "a replica handgun."

On redirect, Mizuhara testified that Rad told him "that he had used firearms before and [could] distinguish a real firearm from a replica firearm." He reaffirmed that Rad said defendant had "pushed the barrel of the gun into his stomach and that it felt heavy and metallic," and that he "he was one hundred percent positive" that defendant was "brandishing an actual handgun."

After the prosecution rested, the defense called Rad back to the stand. Asked about his familiarity with guns, including rifles or handguns, he testified, "I know a lot about rifles. A lot about 'em. . . . Mostly maintenance and using them. Mostly older ones. Automatic ones. I was raised in the Middle East, so protection relies on weapons." In his youth, he said, "me and my little brother had 16 rifles in our room, and I do know a lot about them, yes, sir." These were "mostly submachine guns," specifically AK-47s. He had only used handguns "once or twice." One was his father's military revolver, a custom Cougar Magnum. The other was also a revolver. He had never fired a semiautomatic handgun. He only knew about them from his reading, but he "read about guns a lot actually," including handguns.

He was familiar with Glocks. When Officer Baza had showed him his Glock, Rad had "told him it matched the same Glock that I had seen." He didn't remember if he had said it was a Glock, but he "told him that it's the same one that the department carries, and he showed me his and it matched the same one. I told Officer Baza that his had a longer barrel than the one that I had seen earlier."

Counsel asked Rad yet again whether he had "see[n] any item in Mr. Lovelock's possession, such as a firearm or another object." After some apparent confusion as to time, Rad testified that as defendant came toward him to take the keys, his hand came out from inside his pants holding "something that resembled a firearm." He estimated that he had a "couple seconds" to view it. He did recall telling Mizuhara that he was 100 percent certain it was a gun, and that he could tell the difference between a firearm and a replica. The difference is that "replicas sound like plastic" and have "safety writings on the side," while real guns don't. He could not see whether the object had a safety. He could not "say with a hundred percent assurance here in court that the item Mr. Lovelace had in his hand was a firearm."

Questioned further by the prosecutor, Rad affirmed that he saw "the barrel of a gun" and that he saw the handle with silver duct tape on it. He also reaffirmed his earlier testimony of how defendant held the gun, how he had "pushed the [gun] into your stomach," how it "felt heavy and metallic." The officer's gun was "exactly what I had seen." Reminded of his testimony that he had closed his eyes, he affirmed that he had done so because "I thought he was going to shoot me 'cause he took me in the alley to do it."

The jury found defendant guilty of all charges and found true both alleged enhancements, including defendant's personal use of a firearm. The court sentenced him to a total term of 19 years in prison, 10 of which were attributable to the firearms enhancement. This timely appeal followed.


After the defense had recalled Rad, and after he was again excused, defense counsel moved to admit expert testimony concerning the potential difficulty of distinguishing a replica from a genuine firearm. The matter was discussed "extensive[ly]" in camera before the court invited counsel to recapitulate the discussions on the record. Defense counsel said he sought to call Jess Guy of the public defender's office "as an expert to controvert the testimony of Officer Mizuhara who testified that in his experience the replicas are generally made of plastic, and that would relate to air soft pistols, pellet guns, weapons of that sort--weapons . . . that are not firearms. So Mr. Guy would come in, testify that in his opinion it is difficult to tell the difference between a firearm and a replica firearm particularly if an individual only has a brief opportunity to view both, or one of those items, as Mr. Rad testified to. [¶] . . . . [¶] So Mr. Guy would be able to point the jury--or describe to the jury the difference between the two, that is, a replica and a firearm, and state that they appear identical unless a close physical inspection is made of the item."

The prosecutor responded that there had been no evidence "that the firearm in this case was a replica," that the questioning of Detective Mizuhara on that subject had been "essentially" conducted over prosecution objection, and that "they are setting up a strawman to knock down after [Mizuhara] stated, and I think was pretty obvious, that he does not have any expertise in the area of replica firearms versus non-replica actual firearms."

The court expressed agreement with the prosecutor's argument, stating, "I perhaps shouldn't have allowed you [to] even get into the cross-examination that you did get into, but it's a delicate dance, I think, between giving the defense an opportunity to raise a reasonable doubt and yet not spillover [sic] into pure speculation. . . . [¶] But I agree with the People that, in essence, the defense is proferring, if you will, an affirmative defense based on a lack of foundation, therefore, on speculation. [¶] So, I think it's one thing to argue it, and I think the defense is perfectly okay to argue that we don't know what it is and so forth, but to go one step further and allow the defense to put on evidence based on speculation, I think that's beyond the pale." The court thereupon denied the request to present the proposed testimony.

The sole question on appeal is whether this ruling constitutes reversible error. For a trial court's exclusion of evidence to constitute error, it must appear, at a minimum, that the evidence was relevant and was not rendered inadmissible by any exclusionary rule. In addition, the "substance, purpose, and relevance of the excluded evidence" must have been "made known to the court by the questions asked, an offer of proof, or by [some] other means." (Evid. Code, § 354, subd. (a).) Finally, it must appear to the reviewing court that the error "resulted in a miscarriage of justice." (Evid. Code, § 354.)

A decision whether to admit expert testimony requires consideration of a number of factors that vary widely from case to case. The resolution of many of them, if not all, is necessarily vested in the trial court's discretion, a sound exercise of which will not be disturbed on appeal. Here, the trial court appears not to have addressed any of the more esoteric factors that can arise in the context of expert testimony. It concerned itself exclusively with the relevance of the evidence as weighed against its potential to confuse the jury. The court thus exercised its inherent power under Evidence Code section 352 to exclude, in its discretion, evidence whose "probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

We can find no fault in the court's performance of this calculus. As one member of this court has written, evidence proffered by a criminal defendant need not affirmatively show the existence of an exculpatory fact if it would permit the jury to "reasonably infer" its possible existence, provided that "the possibility [is] substantial enough to raise a reasonable doubt about defendant's guilt." (People v. Daniels (2009) 176 Cal.App.4th 304, 338 (dis. opn. of Rushing, P.J.).) Here, the expert testimony would have tended to show that the object might have been a non-firearm replica, but it did nothing to substantiate that hypothesis. It raised only the naked unquantified possibility that the object held by defendant was not a real firearm.

Counsel asserted below that the proffered evidence was relevant to inform the jury that "it is difficult to tell the difference between a firearm and a replica firearm particularly if an individual only has a brief opportunity to view [it]," and that the two objects "appear identical unless a close physical inspection is made." This evidence, he said, would "controvert the testimony of Officer Mizuhara . . . that in his experience the replicas are generally made of plastic . . . ." But the differences or similarities between replicas and real guns were at best minimally relevant unless there was some basis to reasonably infer that what Rad saw was not in fact a real firearm. The proffered testimony would only have established a theoretical possibility. To raise a reasonable doubt required a rational inference of an actual possibility that the object was not a firearm. In other words there had to be some evidentiary basis to form at least a sense of the likelihood that an object resembling a real gun in the respects shown by the evidence was instead a non-firearm replica. The proffered testimony would have tended to show only that this hypothesis lay somewhere within the realm of possibility.

As the trial court observed, the defense as so described rested on nothing more than "speculation." Defense counsel was free to argue it, as indeed he ultimately did. But to present it in the form of expert testimony would threaten to confuse the jury by clothing the "replica" premise with an appearance of substance that it simply did not possess.

A different view might be warranted if the defense had offered to substantiate its factual hypothesis, perhaps by showing the relative prevalence or availability of replicas vis a vis genuine firearms, or by presenting some basis to suppose that defendant at some point possessed or had access to a replica. Presented with such evidence, a jury might have sufficient basis to form some rational idea, however rough, of the likelihood that the object was a replica rather than a real gun. In the absence of some such showing, however, the mere fact that similar objects exist possessed the barest minimum of probative value. Weighing against this minimal value was the risk that the jury would be confused or distracted by the proffered testimony. The very fact that an expert was testifying on the subject might mislead the jury into thinking that there was more to the defense hypothesis than the evidence actually suggested.

Rather than address these weaknesses, defendant characterizes the proffered testimony as tending to "contradict Mizuhara's testimony" that, "in essence, . . . the item was a firearm because replicas were plastic and lighter than a gun which is metallic and heavy." Elsewhere he asserts that it "was relevant because it would have contradicted the testimony of . . . Mizuhara that the gun seen by Rad must have been an actual firearm because it was metallic and heavy." He asserts "a constitutional due process right to introduce evidence to contradict Mizuhara's testimony and to establish that replica guns can be metallic, heavy and hard to distinguish from actual guns."

To the extent that these assertions suggest a separate theory of admissibility, they rest on an inaccurate characterization of Mizuhara's testimony. He at no time declared as a fact that only guns, and not replicas, can be "metallic and heavy." When pressed by defense counsel, he allowed that he was "familiar with replica firearms." But he consistently disclaimed definitive knowledge on the subject, noting that he had received no training on the distinction.*fn7 When directly asked whether some replica firearms are "made of metallic materials," he replied, "Not that I'm familiar with. I don't know."

We would face a different case, as defendant implies, if the prosecution had adduced evidence that the object could not have been a replica because of its observed characteristics. In such a case it could be forcefully argued that the prosecution, by attempting to show the impossibility of the object's being fake, would have opened the door to proof of a mere possibility that it was fake. But that is not what occurred. The prosecution merely introduced Rad's statement that he was certain he saw a gun. This statement was admissible over a hearsay objection only because it contradicted Rad's testimony that he did not think he had seen a gun. (See Evid. Code, § 1235.) Once the prior inconsistent statements were introduced, the jury had to weight them against his agnostic testimony on the stand. It was in support of the prior statements, and impeachment of the testimony, that the prosecution initially asked officers what Rad had told them about the object's characteristics and circumstances--its weight, composition, color, make, and so on. When Detective Mizuhara first testified that the gun was "metallic and heavy," he was responding to a question about what "details" had been reported by Rad that "led [Mizuhara] believe that [Rad] did not seem to be confused about what had happened to him." Other details included that "the barrel of the firearm was pushed against his stomach," and that the gunman held it in his hand. Similarly, Officer Baza testified that Rad told him the gunman held the gun in his right hand with his index finger on the slide and his middle finger on the trigger area, that its handle was wrapped with silver duct tape, and that it was a Glock-type firearm. All of these details were adduced not to establish that the gun was genuine instead of a replica--a question that had not yet arisen--but to refute Rad's testimonial denial that he had seen a gun at all. No other significance was attributed to them by the prosecution.

In contrast, the matters the defense sought to "contradict" through its expert were matters adduced by it in questioning prosecution witnesses. In ruling on the defense proffer of expert testimony, the trial court wondered aloud whether it should have permitted the questioning the defense thus sought to contradict. We would go further, questioning whether a defendant can, in the words of the prosecutor, "set[] up a strawman to knock down after [Mizuhara] stated, and I think was pretty obvious, that he does not have any expertise in the area of replica firearms versus non-replica actual firearms." Although the old rules against impeachment on collateral matters and attacking the credibility of one's own witnesses were abolished with the adoption of the Evidence Code, we remain skeptical of the right of a party--even a criminal defendant, to whom great latitude must be given--to elicit testimony for the sole purpose of contradicting it. (See People v. Lavergne (1971) 4 Cal.3d 735, 743-744.)

We also note that Detective Mizuhara did not see the object in question, and his opinion of its character--if he had one--was not strictly germane, or likely to be a question of great interest to the jury. The real question was the accuracy of Rad's original description of the object. To the extent that description depended on his perception of its weight and metallic composition, then evidence casting doubt on those factors as distinguishing characteristics would have some tendency in reason to cast doubt on the reliability of Rad's opinion. But the closest defense counsel came to pursuing that line of inquiry was to confirm, first, that Rad had told Mizuhara he could tell the difference between a firearm and a replica. Counsel then elicited testimony from Rad that "replicas sound like plastic" and have "safety writings on the side," while real guns don't. The reference to what replicas "sound like" had no apparent relevance here since there was no suggestion that the object was ever operated mechanically in any way within Rad's hearing. The reference to "safety writings on the side" is so vague as to seem virtually meaningless--at least, without further explanation, which was neither sought from Rad nor offered as part of the proposed expert's testimony.

We conclude that the trial court committed no error of state law in the exclusion of the proposed testimony. Defendant seeks to elevate the challenged ruling to a federal due process violation by asserting that it deprived him of "a meaningful opportunity to present a complete defense." (California v. Trombetta (1984) 467 U.S. 479, 485.) But "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense." (People v. Hall (1986) 41 Cal.3d 826, 834; see People v. Frye (1998) 18 Cal.4th 894, 945, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here the evidence would only add an illusion of substance to the wholly speculative possibility on which the defense was based. We are not persuaded that this offended any constitutional guarantee. (See People v. Cornwell (2005) 37 Cal.4th 50, 78-82, overruled on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)

Finally we note that the ruling is unlikely to have affected the outcome. As it was, defense counsel argued the basic defense position to the jury. He read aloud the legal definition of a firearm--taken from the instructions to be given by the court--and said that it did not include a pellet gun, BB gun, airsoft gun, or "replica of a gun." He referred repeatedly to Rad's testimony that he only saw the supposed gun for two seconds, and to the authorities' failure to find a gun or ammunition. He said, "There's been no evidence that this was in fact an actual firearm." He argued that the evidence failed to establish "beyond a reasonable doubt that this was in fact a firearm." And he said that "if any of you have any reservations as to whether or not this was in fact a firearm, it is your obligation as jurors to find that allegation not true."

The prosecutor's response was a preview of what might have been anticipated, though with perhaps greater force and substance, if the proffered expert testimony had been admitted. After alluding to Rad's familiarity with firearms, he said, "I'll tell you what you have not seen . . . during this trial. You've never seen a pellet gun . . .[,] a BB-gun . . .[,] an airsoft gun . . .[, or] a replica of a gun. You didn't see those things because they were not used in this case." This argument pointed to a serious weakness in the defense theory, which was that if officers found no gun, they also found no replica gun. One who has used a genuine firearm in a crime has an obvious reason to secrete or dispose of it. No one is surprised, then, if the ensuing investigation turns up no firearm. But one who uses a replica firearm has no such motive. Indeed it might be supposed that one of the reasons to use a replica in the first place is to avoid the magnification of criminal consequences that accompanies use of a real firearm. To dispose of the replica is, in that context, counterproductive. Of course this all assumes a level of calculatedness that may not be warranted. The use of the gun/replica, as well as its disappearance, may have nothing to do with anticipated criminal consequences. It may simply be a matter of what the defendant could get his hands on. Perhaps he borrowed the object and had to give it back. But that would not prevent the prosecutor from making considerable use of the disappearance of the object if an expert had testified as proposed by the defense. Certainly this record presents no reason to suppose that the excluded testimony would succeeded in raising a reasonable doubt where counsel's argument, to similar effect, failed--unless it was by the impermissible process of confusing the jury.


The judgment is affirmed.


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