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The People v. Eduardo Guillen


December 29, 2010


Super. Ct. No. 08CF3297 Appeal from a judgment of the Superior Court of Orange County, Glenda Sanders, Judge. Affirmed.

The opinion of the court was delivered by: O'leary, J.

P. v. Guillen CA4/3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Eduardo Guillen appeals from a judgment after a jury convicted him of two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)),*fn1 shooting from a motor vehicle (§ 12034, subd. (c)), two counts of assault with a firearm (§ 245, subd. (a)(2)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and allegations of a strike prior (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and a prior serious felony conviction were found to be true. He contends: (1) the trial court erred by denying his motion to dismiss; (2) the trial court abused its discretion by admitting his statements to police; (3) there was insufficient evidence to support his conviction; and (4) the trial court abused its discretion when it refused to strike his prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We reject his contentions and affirm the judgment.


Jorge Preciado and his brother-in-law, Juan Olivares, lived in Santa Ana with Preciado's family. On the day after Thanksgiving 2006, the family was having a party in the backyard of their home. Around 8:30 p.m., someone threw a beer bottle at the door in the block wall around the front of the house. The family went inside and Preciado woke Olivares. Preciado and Olivares went outside. After they had been outside for between five and 20 minutes, Preciado and Olivares saw a white Ford Bronco with a black camper shell driving along Richland Street approaching the house. Gunshots were fired at the men from the passenger side of the vehicle. Preciado and Olivares hid behind a truck and the Bronco drove off. They called the police.

Santa Ana Police Officer Nicole Quijas interviewed Preciado and Olivares at the scene. Both told her there were two men in the Bronco, both male Hispanics, between 20 and 30 years of age, with black shaved hair. The driver was described as medium build. The passenger, who was the shooter, was described as medium to heavy build. Both men described the passenger pulling a shotgun and firing, hitting the block wall and a parked vehicle. Both Preciado and Olivares told Quijas they had seen the vehicle in the area before and the owner lived in the area. Olivares told police he would be able to identify the driver if he saw him again.

A few days after the shooting Olivares saw the same white Ford Bronco with a black shell parked in front of Guillen's house. He wrote down the license plate number and gave it to the police. Detective Eric Paulson drove to the neighborhood and found the Ford Bronco. It was registered to Guillen's brother who was in custody at the time of the shooting. Paulson learned Guillen also lived at the residence.

Paulson created a six-pack photographic lineup that included Guillen's picture. He showed Olivares the six-pack and Olivares identified Guillen as the driver. Olivares also identified Guillen at trial as the driver. Olivares told Paulson, and testified at trial, he had seen Guillen many times (30 to 50) in the neighborhood prior to the shooting. Guillen lived a few blocks away, and Olivares would often see Guillen outside his house, but had never talked to him. Olivares frequently saw Guillen, with others, tagging in the neighborhood. Olivares told Paulson and testified about an incident that occurred months before the shooting where the block wall around the family's house was tagged by one person, while Guillen acted as the driver and look out. The family cleaned up the graffiti.

Over three months after the shooting, Paulson arrested Guillen. Paulson and another officer interviewed Guillen who waived his Miranda*fn2 rights. At the beginning of the interview, Paulson told Guillen he had been identified in an "incident" and they were there to get Guillen's side of the story. Guillen at first appeared unsure as to what the detectives were referring to. Guillen admitted he was using and paying insurance on the Ford Bronco while his brother was in custody.

During the interview, the officers did not mention the specific date of the incident they were investigating but mentioned holidays as points of reference. Paulson at first mentioned an incident occurring between Halloween and New Years, when Guillen's brother was in jail, but later narrowed it to a tagging incident that occurred "Halloween-ish [to] Thanksgiving." In response, Guillen described an incident where someone named Carlos (aka "Post-it"), came to his house and they went to buy alcohol. Guillen drove the Ford Bronco, and while en route, Carlos got out and walked on foot in front of the vehicle. Carlos began writing graffiti on a wall while Guillen was acting as lookout. Guillen threw a beer bottle from the vehicle. He heard loud gun shots from a rifle or shotgun, and Carlos ran back to the truck, saying they were being shot at. Carlos jumped in the truck and they fled.

Paulson changed the term he was using from "graffiti incident" to "shooting." When he did, Guillen responded by saying "'we never did no shootings, tagging is about all we've done; we've been shot at for that'" and "'there's never been a gun in my truck.'" Guillen said "we" before the detectives mentioned witnesses seeing two people in the white Ford Bronco at the time of the shooting. When Paulson said Guillen's story was different from what the witnesses reported, Guillen responded, "'I'm telling you, I was waiting in the alley, I heard shots, this guy comes running to the truck and then I left . . . ." When the detectives said perhaps Guillen was the one who shot the gun, Guillen denied shooting and said he was shot at.

At this point, Paulson asked Guillen if they were talking about the same night. Guillen said he described the only incident he had been involved where shots were fired. When the officers said they were talking about an incident where Guillen shot back, Guillen replied he was not present at "that incident." Paulson then asked if anyone else had been driving the truck on "the day of the incident," and Guillen answered that other people had driven his brother's truck in the past but not on the day of the shooting. Guillen "guessed" the time of the shooting in which he was involved was around 10 p.m., but the actual date of the shooting at Preciado and Olivares's house, the day after Thanksgiving, was not mentioned in the interview. During the interview Guillen never said "'we did [the shooting], but it was an accident'" but rather maintained he was shot at and he was not a shooter.

Paulson testified he did not narrow the time frame to the day after Thanksgiving because he thought he and Guillen were talking about the same incident given the similarities including: the general time frame, the same location, two shots being fired from a shot gun or rifle, a bottle being thrown, the same car, a witness's identification of Guillen as the driver, and Paulson's research into other reports of shots being fired in the area. Paulson testified he had researched 911 records regarding reports of shootings in the general area. He found three reports relating to the present incident. He found two reports about shots fired in late December 2006 one-eighth to one-quarter of a mile away from where this incident took place but found no reports of other shootings in the immediate area of Richland Street between October 31, 2006, and December 31, 2006.

Defense Case

Mary Downey testified that in late November 2006 Guillen and Javier Quintana did some general electric and other work for her at her home in Riverside. She could not remember the exact date.

Quintana testified that on November 24, 2006, he picked up Guillen after 12 p.m., and they went to Riverside to work for Downey. They worked there for at least an hour and a half after dark. Quintana drove Guillen back to Santa Ana and left him at his house. Guillen's girlfriend, Danielle Zavala, was waiting there for him. Quintana recalled that when he dropped Guillen off, Zavala was yelling and upset because they were supposed to go somewhere and Guillen was late.

Zavala testified that on November 24, 2006, she and Guillen were supposed to go out to dinner. Guillen did not arrive home from work until 9 or 9:30 p.m., so they were unable to go.

Dr. Mitchell Eisen testified as an expert on eyewitness identification. He explained about the impact of stress and trauma on memory and how the presence of a weapon can dominate a witness's attention. Eisen also testified about the suggestive nature of six-pack photographic lineups. He explained when only one picture in a photographic lineup matches the description of the witnesses then the six-pack is not effective. The witness expects the photographic lineup to include the suspect and will choose the photograph that matches the description he gave.

The information charged Guillen with of attempted murder (counts 1 and 2); shooting from a motor vehicle (count 3); assault with a firearm (counts 4 and 5); and possession of firearm by felon (count 6). It also alleged Guillen was previously convicted of a serious and violent felony under the Three Strikes Law, and of a prior serious felony under section 667, subdivision (a)(1). On December 16, 2008, Guillen filed a motion to dismiss the case with prejudice, which the trial court denied. The jury convicted Guillen on all counts, and the trial court found the prior serious felony conviction allegations to be true. The trial court denied Guillen's motion for new trial and to dismiss his prior strike conviction. The trial court sentenced him to a total of 19 years in prison.


1. Motion to Dismiss

Guillen contends the trial court erred by denying his motion to dismiss. He contends the prosecutor acted in bad faith by seeking dismissal and then re-filing the case after the trial court granted Guillen's motion in limine to exclude his statements made during the police interview. He argues the prosecutor was engaged in forum shopping and his speedy trial rights were violated. We disagree.

We begin with background. The case was originally filed as case No. 07CF0880 and was assigned to Judge Glenda Sanders. The parties answered ready for trial on November 4, 2008.

On November 12, 2008, the trial court ruled on several motions in limine. It denied the prosecution's request to introduce gang evidence. The trial court granted Guillen's motion to exclude his police interview with Paulson. He argued, and the trial court agreed, it was not clear from the transcript of the interview whether the officers and Guillen were both talking about the same incident, i.e., the November 24, 2006, shooting at Preciado's and Olivares's house. In ruling, the trial judge stated, "given [the] ambiguity, the probative value of [Guillen's] statements is substantially outweighed by the undue prejudicial effect that is likely to result from confusing the jury and misleading the jury."

In view of the trial court's ruling, the prosecutor moved to dismiss the case under section 1385 (dismissal in furtherance of justice), so he could re-file, conceding that without the interview, he could not prove the charges beyond a reasonable doubt. Guillen objected and the trial court denied the prosecution motion to dismiss, but continued trial to November 17, 2008, the date set to begin jury selection, to allow the prosecutor to get additional information he thought might be available. The prosecutor mentioned information the investigating officer, Paulson, was obtaining regarding all the shootings in the area during the time frame that would show Guillen and Paulson were talking about the same shooting.

On November 18, 2008, day 10 of 10 for speedy trial purposes had passed and the prosecution stated it could not proceed. Guillen moved to dismiss the case with prejudice, the court denied the motion and again continued the matter.

On November 20, 2008, the trial court dismissed case No. 07CF0880 pursuant to section 1382, subdivision (a)(2)(B), and ordered any refiling of charges be assigned to the same courtroom. The prosecution immediately refiled and the case was assigned to Judge Sanders. The prosecution filed a motion to disqualify Judge Sanders (Code Civ. Proc., § 170.6), which was denied. The prosecution's petition for writ of mandate and a request for immediate stay filed in this court on December 1, 2008, were also denied. Guillen filed a motion to dismiss the case with prejudice, which the trial court denied on January 16, 2009. Trial began on February 4, 2009.

Guillen contends due process compelled dismissal of the refiled charges. We disagree.

When conduct by the prosecution "is so outrageous as to interfere with an accused's right of due process of law, proceedings against the accused are thereby rendered improper. [Citations.]" (Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429.) A trial court may dismiss a case in order to discourage "flagrant and shocking misconduct by overzealous governmental officials in subsequent cases. [Citations.]" (Ibid.) Examples of such sanctionable behavior involve conduct that "shocks the conscience," such as contacting the defendant without his attorney present (id. at p. 427), and use of entrapment to gain a conviction (People v. McIntire (1979) 23 Cal.3d 742, 748). Dismissal is an appropriate remedy only when there is demonstrable prejudice or a substantial threat thereof. (People v. Zapien (1993) 4 Cal.4th 929, 967.)

Guillen argues the prosecution's conduct was fundamentally unfair. Having obtained an adverse ruling on the admissibility of Guillen's statements to police, the prosecutor sought dismissal of the first case under section 1385 so he could refile and relitigate the evidentiary issue. There was nothing inherently inappropriate in the prosecutor's actions. So long as jeopardy has not attached and the statute of limitations has not run, the prosecution may re-file charges. (Crockett v. Superior Court (1975) 14 Cal.3d 433, 437-438.) "Jeopardy does not attach when felony charges are dismissed prior to trial and since the People's ability to refile charges is generally limited to one additional filing, res judicata and collateral estoppel principles are not needed to prevent harassment of a defendant. [Citations.]" (People v. Gallegos (1997) 54 Cal.App.4th 252, 267 (Gallegos).) Furthermore, the prosecution may relitigate earlier unfavorable evidentiary rulings. Indeed, we note that in the context of a suppression motion, section 1538.4, subdivision (j), specifically permits the prosecution to dismiss, refile and relitigate a suppression motion one time. And courts have found there is no due process violation in doing so as long as a defendant is not restricted in what witnesses or evidence he may present (Gallegos, supra, 54 Cal.App.4th at p. 268), and the same trial judge presides over the second hearing, so as to prevent forum shopping by the prosecutor. (Id. at p. 263 ["inherent unfairness of seeking a different ruling from a different judge in the context of opposing suppression motions"].)

Nor are we persuaded by Guillen's speedy trial argument. Guillen correctly notes the prosecution's statutory right to refile a case may not infringe upon a defendant's right to a speedy trial. He cites People v. Bellizzi (1974) 12 Cal.3d 33 (Bellizzi), in which the prosecution's dismissal and refiling of the charges resulted in the unavailability witness favorable to defendant. (Id. at p. 35.) All statutory requirements had been complied with. In considering defendant's argument his speedy trial rights had nonetheless been violated, the court held such a finding could be made only if "the prejudicial effect of the delay outweighed any justification for it. [Citations.]" (Id. at p. 38.) The court found the prejudice to defendant was not a result of the delay but rather based on negligence by defendant in not ensuring his witness was available. (Ibid.) The court observed, the result would be the same if it "employ[ed] the 'ad hoc balancing test' of Barker v. Wingo [1972] 407 U.S. 514, 530 . . . , which requires consideration of such factors as the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant in appraising a claimed denial of his right to a speedy trial under the Sixth Amendment to the United States Constitution. Here, as noted above, the delay was minimal and, in any event, whatever prejudice defendant may have suffered was primarily attributable to his own neglect." (Bellizzi, supra, 12 Cal.3d at p. 38, fn. 5.)

Here, there is no evidence the prosecutor was attempting to obtain an unfair advantage. Rather, he was seeking to salvage his case after the trial court ruled it would not admit the police interview. Guillen conceded the prosecutor had a statutory right to refile the case. Furthermore, there is no demonstrable prejudice that resulted or an infringement upon Guillen's constitutional right to a speedy trial. The prosecution immediately refiled the case the same day, and no substantial delay resulted. The prosecution also filed a writ of mandate and a request for an immediate stay, which were denied by this court. The fact the prosecution in their unsuccessful motion to disqualify the trial judge asserted the trial judge was biased does not suggest the trial judge was biased against Guillen. Moreover, Guillen's claim of prejudice due to "forum shopping" fails because in the end the case was heard by the same trial judge who presided over the original case.

Guillen's claim he suffered prejudice because he was forced to reveal his witnesses is unavailing. The defense was statutorily obligated to disclose this information 30 days before trial. (§§ 1054.3, 1054.7.) Furthermore, the prosecution also was required to disclose discovery to the defense (§ 1054.1), and thus both sides revealed their cases to each other.

2. Admissibility of Guillen's Statement to Police

Guillen contends the trial court erred by admitting his statements made during his police interview into evidence. We find no error.

"[A]ll relevant evidence is admissible" unless prohibited by statute. (Evid. Code, § 351.) Relevant evidence is that "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "Evidence is relevant if it 'tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citations.] Evidence is irrelevant, however, if it leads only to speculative inferences. [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 711 (Morrison).) Evidence does not need to completely confirm anything to be admissible as it is "'axiomatic that its weight is for the jury.' [Citation.]" (People v. Peggese (1980) 102 Cal.App.3d 415, 420 (Peggese).)

Even if otherwise admissible, the trial court may exclude evidence under Evidence Code section 352 "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "Prejudice for purposes of [Evidence Code] section 352 refers to evidence that tends to evoke an emotional bias against the defendant. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 840.)

We review "'any ruling by a trial court as to the admissibility of evidence for abuse of discretion.' [Citation.] This standard of review applies to a trial court's determination of the relevance of evidence, as well as to whether the evidence's probative value is substantially outweighed by its prejudicial effect. [Citations.] The trial court's 'discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all circumstances being considered.' [Citation]" (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639 (Sun Pacific).)

Guillen contends his interview with police should have been excluded because it was not clear he and Paulson were discussing the same incident. We find no abuse of discretion. In the interview, Guillen described an evening where he and Carlos (aka "Post-it") were out "tagging" using the white Ford Bronco. Carlos walked in front of the truck while Guillen drove. Guillen described the path he drove on the "tagging" night as eastbound on Richland and said he threw a bottle from the truck. When Paulson mentioned a shooting, Guillen responded, "we were not involved in a shooting" but instead said he heard shots and "we" were shot at. Paulson mentioned the time frame as between Halloween and Thanksgiving but did not mention a specific date.

Guillen's description of the night he was merely out "tagging" parallels the witnesses' testimony regarding the night Preciado's and Olivares's house was shot at. Witnesses described a white Ford Bronco (matching the description of Guillen's brother's truck) driving eastbound on Richland. A bottle was thrown at the house. Shots were fired.

In view of the similarities between Guillen's statement to police, and the events described by witnesses, we cannot say admission of the statement was an abuse of discretion, exceeding all bounds of reason. (Sun Pacific, supra, 77 Cal.App.4th at p. 640.) Based on all the statements by Guillen and the witnesses, the decision to admit the evidence was not irrational and arbitrary because the evidence was relevant. Guillen's statement had a tendency in reason to prove or disprove the disputed fact of his identity and involvement of the crime on the night of the shooting. It was for the jury to decide whether or not the evidence proved or disproved those facts. (Peggese, supra, 102 Cal.App.3d at p. 420.) Guillen's statements, as presented by the prosecution, lead to a logical, natural, and reasonable inference Guillen was involved in this shooting because of the similarities between Guillen's depiction of the night of the shooting and that of the witnesses. (Morrison, supra, 34 Cal.4th at p. 711.)

Guillen argues there was no indication he was talking about the night of the current crime as opposed to another tagging incident. Olivares testified about an episode that occurred months before the current shooting. He saw Guillen driving the white Ford Bronco behind another individual who was tagging the wall around Olivares's house. The family cleaned up the graffiti. The fact the description by Guillen of his following someone while tagging matches Olivares's description of the tagging event months earlier does not negate the fact it also matches some of the events on the night of the shooting. Admissible evidence need not absolutely confirm anything. (Peggese, supra, 102 Cal.App.3d at p. 420.) In fact, Guillen's description by natural inference could more logically place him at the current shooting, because his description also included throwing a bottle from the truck and the firing of shots--facts absent from the earlier tagging incident described by Olivares but part of the current shooting incident. The evidence results in logical, not speculative, inferences, and the evidence was relevant. (Morrison, supra, 34 Cal.4th at p. 711.)

Furthermore, there are contradictions in Guillen's statements about the night of the shooting that could lead to a reasonable inference he was lying about some aspects of the events, such as whether he and Carlos were being shot at or doing the shooting. For example, Guillen stated he did not want to be a rat and did not know where Carlos lived, had never been to his home, and did not know his last name. But he also said he had known Carlos for one or two years and after the tagging incident, drove Carlos to his home. "[A]s a general rule, false statements made by a defendant at the time of arrest are admissible--not for the truth of the statement--but to show consciousness of guilt." (People v. Kimble (1988) 44 Cal.3d 480, 496.) Whether or not the statements are false or not is for the jury to decide. It is a question of weight, not admissibility. (Id. at p. 498.)

Guillen makes much of the fact that in the first case, the trial court ruled it would exclude the statements. But that did not preclude the trial court's reconsideration of the statements' admissibility at trial in the second case. In the first case, the trial court had only the transcript of Guillen's interview by police, which it found was unclear as to whether Guillen and the police were talking about the same incident. But the prosecution provided additional information in the second case, including Paulson's testimony regarding the shots fired calls during the relevant period, and an exhibit depicting the street location where Guillen said the shooting he was involved in took place, which coincided with the location of the current shooting. The trial court could reasonably find the additional information bridged any gap in the interview.

Guillen further argues the probative value of the evidence admitted was outweighed by its prejudicial effect and thus should have been excluded under Evidence Code section 352. We disagree.

The record confirms the trial court carefully considered both sides' arguments before admitting the interview statements. There were sufficient parallels between the incident described by Guillen and the shooting in question described by the witnesses including: the same vehicle, the same path driven, a bottle being thrown, and shots being fired from a shotgun or rifle. Guillen's statements were thus of high probative value because they indicated Guillen was involved in the same event described by the witnesses.

Guillen argues nonetheless that despite any probative value, "the admission of the statements still created prejudice to [him] by suggesting that he was a criminal and a person of bad character." "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[All] evidence which tends to prove guilt is prejudicial or damaging to a defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)

Here, Guillen's statements tended to prove his involvement in the crime. In that regard, the statements were damaging to his case or "prejudicial." However, the prejudice under Evidence Code section 352 is not implicated here. Guillen's statements do not evoke an emotional bias without effect on the issues. Indeed, the statements are directly related to the crime in question and thus not prejudicial.

Finally, even if the court erred by admitting the evidence, reversal is not required because the error was harmless. (People v. Brady (2010) 50 Cal.4th 547, 559; People v. Watson (1956) 46 Cal.2d 818, 836.) Guillen was picked out of a photographic lineup by one of the witnesses, Olivares, and he matches the description provided by both witnesses. Olivares had seen Guillen numerous times before and knew where he lived, and identified him at trial as the driver of the vehicle involved in the shooting. It is not reasonably probable a different verdict would have been reached by the jury absent the police interview.

3. Sufficiency of the Evidence

Guillen contends there is insufficient evidence he was the driver of the vehicle the night of the shooting. We disagree.

"The test for reviewing the sufficiency of the evidence is whether there is substantial evidence to support the conclusions of the trier of fact. The evidence is to be viewed in the light most favorable to respondent, and the existence of every fact that the trier of fact could reasonably deduce from the evidence in support of the judgment is to be presumed. [Citations.] [¶] . . . '[A]ppellants often mistakenly assume that, if the evidence against the judgment greatly preponderates, a reversal is proper because of the absence of a substantial conflict. . . . The test, however, is not whether there is substantial conflict, but rather whether there is substantial evidence in favor of the respondent. If this "substantial" evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed. . . . "Of course, all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed." [Citations.]' [Citation.]" (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1496-1497 (Gustavo), italics omitted.) Furthermore, an in-court eyewitness identification is sufficient to sustain a conviction. (People v. Hughes (1969) 271 Cal.App.2d 288, 291 (Hughes).) "[W]hen 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. [Citation.]" (Gustavo, supra, 214 Cal.App.3d at p. 1497.)

Guillen argues the evidence does not support his identification as the driver of the vehicle involved in the shooting at Preciado's house. He contends Olivares's eyewitness identification of him as the driver was suspect because the photographic lineup was unduly suggestive, and the subsequent in-court identification was unreliable. We disagree.

When using a photographic lineup to identify a suspect, "[a] violation of due process only occurs if a pretrial identification procedure is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' [Citations.] 'Whether due process has been violated depends upon the "totality of the circumstances" surrounding the confrontation.' [Citations.] It has been held that '[a] procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' [Citation.]" (People v. Pervoe (1984) 161 Cal.App.3d 342, 358 (Pervoe).) Unduly suggestive lineups include ones where the persons present at the lineup or in the photos all have similar descriptions to each other but are grossly dissimilar to the defendant, or when only the defendant fits the broad general description given by the identifying witness. (Hughes, supra, 271 Cal.App.2d at p. 291.)

Here, Guillen was described by witnesses at the time of the incident, as a Hispanic male, between 20 and 30 years old with a closely shaved hair cut, and medium build. Paulson explained the purpose of a six-pack photographic lineup is to present the suspect along with five others who are similar in age, weight, height, facial hair, and then present it to the witness for purposes of identifying the suspect. A computer program takes the suspect's photograph and from California Department of Motor Vehicles (DMV) photographs, finds similar individuals based on the characteristics of the suspect. The six-pack Paulson presented to Olivares included two individuals without shaved heads, and four with shaved heads. One of the pictures showed a "fat" man, unlike the description of the suspect as "medium build." Four out of the six photos were of men with closely shaved heads; five of the photographs were of men with a medium build and who looked Hispanic; and all were of similar age to the original description. Although the witnesses did not mention whether the driver had facial hair, the DMV picture of Guillen included facial hair. As a result, the computer program included pictures of six individuals with facial hair.

Guillen asserts the photographic lineup was unduly suggestive because the driver Olivares saw the night of the shooting did not have facial hair, one of the photographs included a person who was "fat," three of the photographs had "too much facial hair" and one did not appear to be Hispanic. According to police, the description Olivares gave did not include facial hair, but did not exclude facial hair either. Guillen's picture was not unduly suggestive simply because Guillen had the least amount of hair compared to the other photographs. Rather, the fact all of them had facial hair did not single out Guillen but suggests all the pictures were similar. Olivares picked Guillen's photograph without hesitation as the person driving the vehicle. This positive identification did not violate Guillen's due process based on the totality of the circumstances.

Guillen also attacks Olivares's in-court identification of him as the driver as unreliable because Olivares hesitated during his testimony. Guillen's own expert, Eisen, testified the closer to the event, the more accurate and detailed the description. Olivares described the driver the day of the shooting, and identified him again a few weeks later. Olivares had seen Guillen 30 to 50 times in the neighborhood prior to the shooting. At trial, Olivares identified Guillen saying "[i]t's not the same, but I think it's him, because he was bald" and "I see him differently because I see him heavier; he has hair, he has a mustache, which he didn't [have]." That there might have been a conflict in Olivares's statements, does not render them unreliable--it was for the jury to decide. Just as Olivares's memory may not be as accurate as it was when he first saw the suspect and first identified Guillen at the photographic lineup so may Guillen's appearance have changed over the years. It is not surprising that a person may gain weight over time or grow out hair. Furthermore, the issue is not whether there is substantial conflict but rather whether there is substantial evidence in favor of the verdict. Here, there is substantial evidence based on both the first hand description given at the time of the shooting, the photographic lineup identification a few weeks later, and the in-court identification. As a result the evidence was sufficiently "reasonable, credible, and of solid value--such that a reasonable trier of fact could find [Guillen] guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) All of these circumstances and factors were explored at trial, and thus, the trier of fact's determination is binding on this court.

Guillen also argues it is not clear the vehicle involved in the shooting was his brother's car because the vehicle's license plate number was not obtained until a few days after the shooting. Furthermore, Guillen told police he sometimes let others drive the vehicle. His arguments fail.

Witnesses described the vehicle involved in the shooting as a white Ford Bronco with a black camper shell. A few days later, Olivares saw the vehicle--a white Ford Bronco with the black camper shell, parked in the neighborhood and wrote down the license number. Paulson investigated and saw the white Ford Bronco with the black camper shell parked in front of Guillen's home. Guillen admitted he used the vehicle while his brother was in jail, was paying for insurance on the car, and was taking care of and responsible for it. He admitted driving the Bronco on a tagging mission along the same route as it was driven on the night of the shooting. He admitted throwing a bottle from the vehicle in the area, and although he denied that he and his companion fired shots, he admitted shots were fired. That Guillen told police other people sometimes drove the Bronco, does not render the evidence insufficient to support the conclusion Guillen was the driver the night of the shooting. The jury was sufficiently able to weigh the evidence and determine whether or not the Bronco was involved and who was the driver.

4. Motion to Dismiss Prior Strike Conviction

Guillen contends the trial court abused its discretion when it refused to dismiss his prior strike conviction. We disagree.

"Under section 1385, subdivision (a), a 'judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.' 'In Romero,[supra, 13 Cal.4th 497, the Supreme Court] held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to . . . section 1385[, subdivision] (a).' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).) A trial court's decision to dismiss or strike, or to not dismiss or strike, a sentencing allegation under section 1385 is reviewed under the deferential abuse of discretion standard. (Ibid.)

Two fundamental principles guide a reviewing court for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 376.) "First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)

Guillen argues his prior strike conviction should have been dismissed under section 1385 because it occurred in 1988, 10 years before the current crime, and in the current offense Guillen was the only driver of the vehicle, not the shooter. Guillen has failed to show the court's decision was irrational or arbitrary. Guillen's role in the current offense was not just as a passive participant. By driving the vehicle involved in a shooting of innocent individuals, Guillen's role was critical to the crime. Indeed, the trial court emphasized the nature of the current crime in which the jury found Guillen guilty as very serious because it presented "such a high degree of danger to perfectly innocent people." It was only luck that no one was seriously injured or killed. Moreover, the court noted Guillen's behavior has not been as squeaky clean since his prior strike conviction, as Guillen suggests. Indeed, his prior conviction involved a "gang" robbery "where he went to state prison." The court noted the gang evidence excluded during the trial provides evidence as a motivation for the crime in question because during Guillen's interview he talked about his affiliation with the same gang with which he committed the prior robbery. Guillen also had gang paraphernalia at his house and admitted to engaging in tagging with a gang member. In light of the seriousness of the current crime and evidence Guillen had not changed his ways since the original strike 10 years prior, we cannot say the trial court abused its discretion in omitting to strike Guillen's prior strike.


The judgment is affirmed.




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