Superior Court No.: CC958919 Trial Judge: The Honorable Patricia M. Lucas
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
(Santa Clara County Super. Ct. No. CC958919)
Defendant Bernard Benny Caldwell appeals a judgment entered following a jury trial during which he was convicted of felony battery with great bodily injury (Pen. Code, § 243, subd. (d)) and misdemeanor hit and run driving (Veh. Code, § 20002, subd. (a)).
On appeal, defendant asserts the judgment must be reversed, because the prosecutor committed misconduct during trial by vouching for the prosecution witnesses, stating facts not in evidence, disparaging defense counsel, and referring to defendant's failure to testify.
STATEMENT OF THE FACTS AND CASE
In September 2009, Hans Yum was driving his car, a 1995 Nissan in San Jose, with his cousin, Michael Lee, who was seated in the front passenger seat. As Yum was driving through the intersection of Story and McLaughlin, his car was hit from behind by a green GMC van traveling about 10 miles per hour. Following the hit, Yum turned around and took a picture of the van and saw the driver of the van and another person sitting in the front passenger seat of the van.
The driver of the van stopped and walked toward the Nissan. Yum remained in his car. The driver opened Yum's driver side door and said, "You hit me." Yum responded, "That's not possible." Yum told the driver that the two could tell their sides to the police. Yum then looked down at his cell phone to call the police. While Yum made the call, the driver punched him in the face, and ran back to the van and sped away.
The punch to Yum's face caused a nasal ethmoid fracture, which required surgery to repair. Yum testified at trial that he continues to have numbness and discomfort from the hit.
On September 21, 2009, Detective Carlos Melo ran a records check for the registered owner of the van, which resulted in defendant's name as the owner. Detective Melo used defendant's Department of Motor Vehicles' (DMV) photograph, and created a photo lineup using random photos from the DMV database with similar descriptions.
On September 29, 2009, Yum went to the police station to view a photo lineup to try to identify a suspect in his case. Yum testified that Detective Melo showed him six different pictures, one at a time.*fn1 Detective Francisco Hernandez was also present during the lineup. Yum looked at the pictures several times before selecting the third photo, depicting defendant, as the person who most closely resembled the assailant. Yum also identified defendant in court as the person who struck him.
A third-party witness, Erica Cazarez was driving behind the green GMC van when she saw it hit Yum's Nissan. She saw the driver of the van get out after the collision, open the door of the Nissan, and hit Yum in the face. Cazerez then saw the driver walk back to the van and speed away. A few months after the accident, Cazerez met with Detective Melo, who showed her a photo lineup. Cazerez looked at the photos five times, and debated between the third and the sixth photo as depicting the driver of the GMC van, saying it was "one of them," that drove the van. Finally, Cazerez identified the third photo that depicted defendant, saying, "I'm leaning towards him. The dreadlocks. The face. This is him. I'm pretty sure it's him."
Following the first meeting, Detective Melo again met with Cazerez to conduct a photo lineup at her residence on October 5, 2009. Detective Hernandez accompanied Melo, and showed Cazerez a series of six pictures, one at a time. Cazerez could not "completely decide," on which picture depicted the driver of the van until she had looked at the lineup three times. At that point, Cazerez identified the third picture that depicted defendant as being the person who drove the van.
Miguel Martinez testified that he purchased the GMC van involved in the accident on August 18, 2009, fixed it up, and sold it on August 29, 2009. Martinez identified the "pink slip" for the van that he signed transferring ownership to a person named, "Caldwell Bernard."
The defense at trial was false identity. The defense called Dr. Deborah Davis as an expert in eyewitness memory and identification. Dr. Davis testified that eyewitness testimony is less accurate than most people believe, and that people have difficulty identifying individuals of a different race. In addition, Dr. Davis testified that most people believe that a suspect ...