P. v. Carter

Filed 10/5/17 P. v. Carter CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN MITCHELL
CARTER et al.,
Defendants and
Appellants.
B272472
(Los Angeles County
Super. Ct. No. TA138048)
APPEAL from judgments of the Superior Court of Los
Angeles County, John J. Lonegran, Jr., Judge. Affirmed.
Renee Paradis, under appointment by the Court of Appeal,
for Defendant and Appellant Jonathan Mitchell Carter.
Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant Joshua Earl Charles.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant

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Attorney General, Paul M. Roadarmel and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
Defendants Jonathan Mitchell Carter and Joshua Earl
Charles appeal the judgments following their convictions for
carjacking and robbery with gun use enhancements. Carter
challenges the admission of two items of evidence. We agree the
trial court abused its discretion in admitting both pieces of
evidence, but we find no prejudice warranting reversal. Charles
challenges the trial court’s reasonable doubt instruction, but his
contention has been rejected in many cases and we see no reason
to depart from them. We affirm.
PROCEDURAL BACKGROUND
Following a joint trial, a jury found appellants guilty of two
counts of robbery (Pen. Code, § 211)1 and two counts of carjacking
(§ 215, subd. (a)) and found true gun use enhancements
(§§ 1203.06, 12022.5, subd. (a), 12022.53, subd. (b)). Carter was
sentenced to 15 years in state prison, and Charles was sentenced
to 13 years.
FACTUAL BACKGROUND
This case arose from a carjacking on August 26, 2015. That
night, victim Donja Brooks was sitting in the driver’s seat and
victim Bryanna Cotton was sitting in the passenger seat of
Cotton’s car. While they were talking, Brooks was looking down
at his phone. Appellants walked in the middle of the street
1 All undesignated statutory citations are to the Penal Code
unless noted otherwise.

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toward the car, then walked past Cotton and she lost sight of
them. She heard them say something but did not know what.
About 30 minutes later, a red truck drove slowly past
Cotton’s car and parked in a nearby school’s parking lot.
Appellants walked toward the red truck and argued with
someone inside. A couple of minutes later, the red truck drove
away as appellants remained standing in the middle of the street.
Appellants approached Cotton’s car. Carter had a hand
under his sweater as he walked toward the driver’s side. Charles
walked around the parked car in front of Cotton’s car and onto
the sidewalk. When he neared the passenger side mirror, he
pulled a gun. Carter also pulled a gun. Charles pointed the gun
at Cotton’s face and demanded her things. She gave him her
jewelry and money. He also snatched a necklace around her
neck.
Brooks was looking at his phone when Carter pointed the
gun at his head, demanded his phone, and ordered him out of the
car. In shock, Brooks did not take the demands seriously. Carter
punched Brooks in the chin and hit the door, saying, “It’s not a
game. Give me your phone.” Brooks got out of the car and
handed over his phone. Carter also ordered him to empty his
pockets. A car drove by so Carter ordered Brooks back into the
car. Once the car was gone, he ordered Brooks back out and to lie
on the ground. Brooks gave over his car keys and whatever else
he had in his pockets and lay on the ground. Carter took
Brooks’s phone and keys.
Brooks heard Carter say, “Flip that bitch bra and get her,
get her, get her.” Charles ordered Cotton out of the car and to lie
on the ground as well. Cotton was afraid Charles would shoot
her or hit her if she did not comply. Carter entered the driver’s

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side, Charles entered the front passenger side, and they drove
away. Brooks and Cotton ran to Cotton’s house nearby and
Cotton’s mother called the police.
About five to six hours after the carjacking—around
2:00 a.m.—a Los Angeles County sheriff’s deputy provided air
support to ground deputies searching for appellants. He
responded to a location where Cotton’s car was spotted and
shined the helicopter’s lights at the car, which accelerated. The
car stopped abruptly and a black male in a black jacket and dark-
colored pants jumped out. The car drove away and the deputy in
the helicopter followed it. The car struck a parked car and the
driver fled into a nearby garage. A deputy on the ground
responded with a police dog and found Carter in the garage. He
was arrested.
Another deputy responded to the other passenger who had
fled the car during the helicopter pursuit. He spotted Charles in
the area and detained him. A search of the area yielded a pair of
black sweatpants and an Adidas windbreaker jacket. Charles
told the deputy he jumped out of the car and ran but stopped
running and walked when he spotted the deputy. He took off his
clothes to avoid being arrested. He also told the deputy he threw
a gun from the car, although he later claimed he did not have a
gun. The deputy searched the area Charles indicated but did not
find anything relevant.
At the hospital, police searched Carter’s clothing and found
in his pants pocket two .32-caliber unexpended cartridges and a
Nix check cashing identification card with Cotton’s name and
photograph on it.
During a police interview, Charles again said he threw a
gun from the car and gave a location where it could be found. A

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semiautomatic pistol was located there with cartridges in the
magazine that matched the brand and caliber of the cartridges
found in Carter’s pants. During Carter’s interview, he said he
was homeless and asleep in the garage when he was found.
At a field identification, during photographic lineups, and
at trial, Brooks and Cotton identified Charles as one of the
perpetrators, so his identity was not at issue during trial.
Their identification of Carter was more complicated and the
primary issue in his case. Cotton never identified Carter, and at
trial she testified she was “a thousand percent sure that [Carter]
was not the one that jacked us.” She recognized the man who
approached Brooks but did not see him in the photographic six-
packs she was shown the day after the carjacking or in the
courtroom at trial. She denied that she refused to identify him
because she was scared of him. During the 911 call immediately
after the carjacking, Cotton reported that Brooks had previously
seen one of the carjackers and knew him. She did not say she
had seen one of the carjackers previously because she was afraid.
When police arrived at Cotton’s house, both Cotton and Brooks
gave physical descriptions of the carjackers (although at trial
Brooks did not recall giving descriptions).
Brooks identified Carter in a photographic six-pack shown
to him the day after the carjacking. Detective Gustavo Ramirez,
the investigator in the case, showed him a first set of
photographs, and Brooks asked to see the second set. Detective
Ramirez directed him to respond to the first set. Brooks said,
“I’m sure of the facial structure, I’m like, 75%, 80%.” He did not
see tattoos under Carter’s eyes because of the hoodie he was
wearing, even though in the photograph Carter had tattoos.

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At trial, Brooks testified he was not sure about his
identification of Carter, and the man who approached his side of
the car was not in the courtroom. He testified he thought he was
required to circle somebody he recognized in the photographs and
did not recall telling Detective Ramirez he was 75 or 80 percent
sure of Carter’s facial structure. He acknowledged he read the
written admonishment about identifying someone but he felt
pressure to select someone. He would not identify an innocent
person, though.
Brooks did not attend prior court hearings. He “[d]idn’t
want to take a risk” of “anything bad happening to me or my
family.” He was still afraid when he testified at trial.
Detective Ramirez opined at trial that Cotton and Brooks
refused to identify Carter because they were afraid of retaliation.
On cross-examination, he explained Brooks refused to return his
phone calls and refused to go to court, which Detective Ramirez
interpreted to mean he was afraid. But neither Cotton nor
Brooks ever explicitly told him they refused to testify or identify
Carter because they feared retaliation.
Although two guns were involved in the carjacking, only
the semiautomatic was recovered. Brooks described Carter’s gun
as a revolver. Cotton described Charles’s gun as small with a
“ring” in the middle of it. Detective Ramirez later found a
photograph depicting Carter holding what appeared to be a small
revolver.
A couple of weeks after the carjacking, Brooks and Cotton
went to pick up Cotton’s car from the towing company. Several
items were inside that did not belong to either of them, including
a backpack and a gray sweater Cotton identified as belonging to
the carjacker on Brooks’s side of the car. Many other items were

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missing, including Cotton’s Nix check cashing card, which the
victims never got back.2
DISCUSSION
1. Detective Ramirez’s Opinion Testimony
Carter argues the trial court erroneously allowed Detective
Ramirez to opine that Brooks and Cotton refused to identify
Carter because they feared retaliation. We review the admission
of evidence for abuse of discretion. (People v. Goldsmith (2014) 59
Cal.4th 258, 266 (Goldsmith).)3
On direct examination, Detective Ramirez testified he had
investigated 800 to 1,000 cases involving violent crime. He was
asked, “In that number, how often are victims or witnesses
reluctant to share information with you?” A relevance objection
was overruled, and he responded, “I would say it depends on the
nature of the crime. Typically when it’s a violent crime, the
majority of the time the victim or witnesses are reluctant to want
to cooperate with the investigation.”
The prosecutor asked a series of questions about whether
Detective Ramirez had spoken to victims about the reasons for
their reluctance, but the court sustained defense objections. The
prosecutor then asked, “Do you have an opinion as to why Donja
Brooks and Bryanna Cotton refused to identify Mr. Carter in this
2 In the defense case, Charles’s counsel called the deputy
who interviewed Brooks and Cotton at Cotton’s house and then
transported them to the field showup with Charles. Because
there is no issue involving Charles’s identity as a perpetrator, we
need not include these facts.
3 Charles joins Carter’s argument, but because both Cotton
and Brooks unequivocally identified Charles, this argument
would not benefit him.

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case?” Carter’s counsel objected that the question misstated
Detective Ramirez’s testimony and was compound and irrelevant.
The court overruled the objections, and Detective Ramirez
testified, “Their fear was retaliation.”
On cross-examination, Carter’s counsel elicited from
Detective Ramirez that his opinion was not based on anything
the victims said to him directly, but based on Brooks’s refusal to
return phone calls and come into court. In Detective Ramirez’s
view, Brooks refused to testify because “he feared retaliation. He
feared the safety of his family and himself.” In the end, Detective
Ramirez conceded his opinion was based on what he believed, not
based on anything the victims told him.
During a discussion on jury instructions, Carter’s counsel
objected to Detective Ramirez’s opinion that Brooks and Cotton
refused to identify Carter out of fear of retaliation, arguing the
prosecutor committed misconduct by asking the question and the
court erred in allowing the answer because victims’ fear was an
ultimate issue for the jury. Counsel also moved for a mistrial.
The court overruled the objections and denied the mistrial
motion, noting Detective Ramirez never gave an opinion on
whether appellants were guilty. Carter’s counsel requested a
jury instruction on expert witnesses, which the court denied
because Detective Ramirez was testifying to his own observations
when personally dealing with the victims as the investigative
officer. The court agreed to give an instruction on lay witness
opinions.4
4 That instruction was based on CALCRIM No. 333 and
stated: “A witness who was not testifying as an expert gave his
opinion during the trial. You may but are not required to accept
those opinions as true or correct. You may give the opinions

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Detective Ramirez’s opinion on Brooks’s and Cotton’s state
of mind was improper and should not have been admitted.
“ ‘ “[E]vidence that a witness is afraid to testify or fears
retaliation for testifying is relevant to the credibility of that
witness and is therefore admissible. [Citations.] An explanation
of the basis for the witness’s fear is likewise relevant to [his]
credibility and is well within the discretion of the trial court.” ’ ”
(People v. Adams (2014) 60 Cal.4th 541, 570 (Adams); see People
v. Mendoza (2011) 52 Cal.4th 1056, 1084 (Mendoza).) A lay
witness generally may not opine about another’s state of mind,
however; at best, a witness “may testify about objective behavior
[of another person] and describe behavior as being consistent
with a state of mind.” (People v. Chatman (2006) 38 Cal.4th 344,
397 (Chatman) [witness could opine defendant “ ‘seemed to be
enjoying’ ” kicking individual because he observed defendant’s
demeanor during incident].)
Here, Detective Ramirez did not limit his testimony to
opining that Brooks’s and Cotton’s physical demeanor or
statements led him to believe they might have feared retaliation.
He testified directly about their states of mind, which was
improper. Our high court found a similar lay opinion improper in
People v. Houston (2012) 54 Cal.4th 1186 (Houston). In that case
whatever weight you think appropriate. Consider the extent of
the witness’ opportunity to perceive the matters on which his or
her opinion is based, the reasons the witness gave for any opinion
and the facts or information on which the witness relied in
forming that opinion. You must decide whether the information
on which the witness relied was true and accurate. You may
disregard all or any part of an opinion that you find unbelievable,
unreasonable or unsupported by the evidence.”

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involving a mass school shooting, the defendant claimed to have
been molested by one of the teachers he killed. At trial, one of
the defendant’s friends testified he and the defendant were very
close and discussed sexual matters, but the defendant never told
him about the alleged molestation. (Id. at p. 1199.) The
prosecutor asked him, “ ‘In your opinion based upon the
relationship and the type of relationship you had with
[defendant], is that the type of thing, having sexual contact with
[the teacher], that the defendant would have talked to you about
had it occurred?’ ” The friend testified, “ ‘Yeah. We were friends.
I believe that he would have told me such a thing about [the
teacher] touching him or doing anything else. I believe he would
have told me.’ ” (Id. at p. 1221.)
The court explained the friend’s testimony that he and the
defendant often discussed sexual matters and defendant never
told him about the molestation was relevant and admissible. The
friend also could have testified it would have been normal for
them to discuss personal matters, which would shed light on the
nature of their relationship. But, the court explained, the friend’s
testimony “went a step farther. He did not say it would have
been normal for defendant to discuss with him the alleged
molestation by [the teacher]. Instead, he specifically testified
that defendant ‘would have told me such a thing.’ This statement
was speculative and not based on anything [the friend] might
have perceived through his physical senses, and his opinion on
the matter did not help the jury understand the rest of his
testimony. [Citation.] Although it is reasonable to infer that, in
light of the nature of their relationship, defendant would have
told [the friend] about the alleged molestation by [the teacher], it
is the role of the trier of fact, not the witness, to make such an

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inference. The trial court should not have permitted [the friend’s]
specific testimony about what defendant would have told him.”
(Houston, supra, 54 Cal.4th at p. 1222.)
Detective Ramirez’s testimony was no different. He
testified in his experience victims of violent crime are frequently
reluctant to cooperate in investigations. Assuming he was
properly qualified, he might have even testified these witnesses
often appear to fear retaliation. He might have also properly
testified that Brooks and Cotton appeared to be scared or
reluctant based on his observations of their actions, their
physical demeanor, or their comments to him. Indeed, he
testified he encountered difficulties contacting Brooks and getting
him to appear in court. (See Chatman, supra, 38 Cal.4th at
p. 397.) But like the testimony in Houston, Detective Ramirez
could not go a step further and opine that Brooks and Cotton
refused to identify Carter because they actually subjectively
feared retaliation. That was an inference for the jury to draw, so
his testimony should have been excluded.
To argue otherwise, respondent cites two lines of cases: one
in which witnesses personally testified to their own fear or
intimidation (see, e.g., Adams, supra, 60 Cal.4th at p. 570; People
v. Abel (2012) 53 Cal.4th 891, 925; Mendoza, supra, 52 Cal.4th at
p. 1084; People v. Burgener (2003) 29 Cal.4th 833, 869); and
another in which gang experts explained why witnesses might
generally fear testifying in gang prosecutions (see, e.g., People v.
Nguyen (2015) 61 Cal.4th 1015, 1035; People v. Gonzalez (2006)
38 Cal.4th 932, 945-947; People v. Ward (2005) 36 Cal.4th 186,
211). Because Detective Ramirez was neither presented as an
expert witness nor testifying about his own state of mind, these
cases do not apply here. In any event, in the gang cases our high

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court has suggested a gang expert may not opine on whether
specific witnesses feared testifying or identifying suspects, which
is basically what Detective Ramirez did. (See Nguyen, supra, at
p. 1034 [expert’s testimony “described the common behavior of
witnesses to gang-related crimes and did not purport to assess
the veracity of individual witnesses”]; Gonzalez, supra, at p. 947
[expert properly responded to hypothetical questions and “did not
express an opinion about whether the particular witnesses in this
case had been intimidated”].)
Thus, the court should have excluded Detective Ramirez’s
opinion on the victims’ subjective fear of retaliation.5
2. Facebook Photograph of Carter
Joined by Charles, Carter argues the trial court abused its
discretion in admitting a photograph downloaded from his
Facebook page depicting him holding a revolver. He contends the
photograph was irrelevant, lacked foundation, and was unduly
prejudicial under Evidence Code section 352. Again, we review
the trial court’s admission of this evidence for abuse of discretion.
(Goldsmith, supra, 59 Cal.4th at p. 266.)
Cotton and Brooks described both assailants as carrying
guns that resembled revolvers. The one gun recovered was a
semiautomatic, however. During his cross-examination of
Detective Ramirez, Carter’s counsel elicited testimony that
Detective Ramirez used the word “gun” instead of “revolver” in
his police report even though both Cotton’s and Brooks’s
5 In his opening brief, Carter suggested the prosecutor
committed misconduct with her question to Detective Ramirez,
but he clarified in his reply brief that he was not arguing a
separate claim of prosecutorial misconduct so we need not
address it.

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descriptions matched revolvers. Carter’s counsel appeared to
suggest Detective Ramirez was downplaying the fact that officers
recovered a semiautomatic gun that did not necessarily match
the victims’ descriptions.
On cross-examination, Carter’s counsel and Detective
Ramirez had the following exchange about Cotton:
“Q. [Cotton] told—you read that she told Deputy Arteaga
she saw a revolver, correct?
“A. Yes.
“Q. Now, the reason you didn’t put ‘revolver’ in your
report is because that doesn’t help your case, does it?
“A. No.
“Q. What you found was a semiautomatic handgun,
correct?
“A. Yes.”
They had the following exchange about Brooks:
“Q. Now, Mr. Brooks also told you that the gun he saw
was a revolver; is that right?
“A. I don’t recall if he said it was a revolver.
“Q. You didn’t write he said it was a revolver in your
report, right, just like with Ms. Cotton. You wrote that
Mr. Brooks told you the suspect pointed a gun at his head
without specifying what kind of gun, correct?
“A. Yes. [¶] . . . [¶]
“Q. . . . And the same reason you did that—the reason
you just wrote ‘gun’ instead of ‘revolver’ is the same reason you
did with Ms. Cotton in the report is because you didn’t have a
revolver in evidence; isn’t that right?
“A. I do not—we do not have a revolver in evidence,
correct.”

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On redirect examination, the prosecutor asked Detective
Ramirez if he had done any followup investigation to see if he
could locate a revolver. Detective Ramirez responded, “I searched
the defendant’s Facebook.” At that point, Carter’s counsel
objected and the parties and the court went to sidebar.
Carter’s counsel anticipated the prosecutor would introduce
a photograph from Carter’s Facebook page that appeared to
depict Carter holding a revolver. He argued the photograph
lacked foundation and was irrelevant and prejudicial. The
prosecutor responded the photograph had adequate foundation
because it was clearly Carter holding a revolver, and it rebutted
Carter’s counsel’s attack on the integrity of Detective Ramirez’s
investigation. She also argued the photograph was relevant
because both witnesses described a revolver-type weapon and it
showed Carter had access to such a weapon. And she contended
Carter’s counsel opened the door to the introduction of the
photograph with his cross-examination.
Carter’s counsel denied he attacked Detective Ramirez’s
search for a revolver and clarified he was attacking his police
report as misleading by leaving out the word “revolver.” He also
contended there was no evidence when or where the photograph
was taken or even if the gun was real. If the gun was real, he
argued Carter had a right to possess it.
The court rejected Carter’s counsel’s arguments: “Okay. I
disagree. I think because a revolver is at issue in this case, then
it’s up to the jury to give it whatever weight it deserves as long as
everything is redacted except the picture itself so we don’t have
any foundational issues and then [Carter’s counsel] can make
whatever arguments he wants as [the prosecutor] can. [¶] But
I’m going to require everything that’s not relevant—and nothing

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is relevant except for the actual photo and the picture of the
revolver if that’s what it is or purports to be. Everything else
needs to be redacted.” The court also prevented the prosecutor
from asking any gang-related questions.
Carter’s counsel again argued the photograph lacked
foundation because no one knew when it was taken. He
contended, “He is accused of using—committing a crime so that
means any picture of him ever with a revolver is relevant? It just
doesn’t make sense.” The court responded it was up to the jury to
decide if the photograph showed Carter and showed a revolver
and whether the photograph was relevant based on the facts in
the case. The court also ensured everything related to Facebook
would be redacted and Detective Ramirez’s last answer referring
to Facebook would be stricken. And the court indicated defense
counsel could question where and when the photograph was
taken.
In front of the jury, Detective Ramirez was shown the
photograph and testified it depicted Carter holding a revolver
that looked “exactly like the type of backup weapon we carry on
duty.” He acknowledged the gun was not fully in the frame. He
gave no details to the jury as to where he obtained the
photograph. Neither defense counsel asked any questions about
the photograph on recross-examination.
In his closing statement, Carter’s counsel argued the
photograph was irrelevant and had no probative value because it
was undated and Detective Ramirez never showed the
photograph to the victims so they might identify the gun as one
used in the carjacking. Consistent with his cross-examination of
Detective Ramirez, Carter’s counsel also pointed out Detective

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Ramirez did not write “revolver” in the police report even though
the victims described revolvers.
On appeal, Carter again argues the photograph was
inadmissible because it lacked foundation and was irrelevant and
unduly prejudicial. We agree it lacked sufficient foundation, so
we need not decide if it was relevant or unduly prejudicial under
Evidence Code section 352.
Our high court recently clarified the foundation necessary
to admit photographic evidence to the jury. (See Goldsmith,
supra, 59 Cal.4th at pp. 266-272.) Authentication is a
preliminary fact determined by the court, and it is statutorily
defined as “ ‘the introduction of evidence sufficient to sustain a
finding that it is the writing that the proponent of the evidence
claims it is’ or ‘the establishment of such facts by any other
means provided by law’ [citation].” (Id. at p. 266.) The proof
necessary to authenticate a photograph “varies with the nature of
the evidence that the photograph or video recording is being
offered to prove and with the degree of possibility of error.
[Citation.] The first step is to determine the purpose for which
the evidence is being offered. The purpose of the evidence will
determine what must be shown for authentication, which may
vary from case to case. [Citation.] The foundation requires that
there be sufficient evidence for a trier of fact to find that the
writing is what it purports to be, i.e., that it is genuine for the
purpose offered. [Citation.] Essentially, what is necessary is a
prima facie case. ‘As long as the evidence would support a
finding of authenticity, the writing is admissible. The fact
conflicting inferences can be drawn regarding authenticity goes to
the document’s weight as evidence, not its admissibility.’ ” (Id. at
p. 267.)

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The prosecutor cited two reasons why she wanted to
introduce the photograph. First, it rebutted Carter’s counsel’s
attack on Detective Ramirez’s police report that did not
specifically mention a revolver. For this purpose, only the most
basic foundation was necessary, namely that Detective Ramirez
searched for and located the photograph that he believed depicted
Carter holding what appeared to a revolver. From that, the jury
could infer that Detective Ramirez did not use the more general
term “gun” in his police report to gloss over a weakness in the
case—that the victims described revolvers while police recovered
a semiautomatic. For this purpose, it did not matter when or
where the photograph was taken or whether the photograph
actually depicted Carter or actually depicted a revolver. It was
sufficient that Detective Ramirez believed it did.
But the prosecutor also sought admission of the photograph
to corroborate the victims’ description of the perpetrators using
revolvers and to show Carter had access to a revolver. For these
purposes, the prosecutor had to lay a sufficient foundation for the
jury to infer the photograph actually depicted Carter holding a
revolver. The prosecutor failed to do so.
“A photograph or video recording is typically authenticated
by showing it is a fair and accurate representation of the scene
depicted. [Citations.] This foundation may, but need not be,
supplied by the person taking the photograph or by a person who
witnessed the event being recorded. [Citations.] It may be
supplied by other witness testimony, circumstantial evidence,
content and location.” (Goldsmith, supra, 59 Cal.4th at pp. 267-
268.)
The court in People v. Beckley (2010) 185 Cal.App.4th 509
(Beckley) found a photograph obtained from social media

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depicting an individual flashing a gang sign lacked adequate
authentication because there was no evidence it was what the
prosecution claimed it was. (Id. at p. 515.) The detective
testified he obtained it from the defendant’s MySpace account,
but he had no personal knowledge the photograph accurately
depicted the individual flashing the gang sign, and no expert
testified it was not manipulated. (Ibid.)
This case is at least as weak as Beckley because the court
excluded any evidence that would have allowed the jury to
conclude the photograph was what the prosecution represented.
Once the trial court concluded a prima facie case of foundation
existed, the jury was required to make the “ultimate
determination of the authenticity of the evidence” by
“consider[ing] any rebuttal evidence and balance[ing] it against
the authenticating evidence in order to arrive at a final
determination on whether the photograph, in fact, is authentic.”
(In re K.B. (2015) 238 Cal.App.4th 989, 997 (K.B.).) But the trial
court excluded evidence that Detective Ramirez obtained it from
Carter’s Facebook page. At least in Beckley the jury was told the
photograph came from the defendant’s MySpace page. Here, the
jury was presented with a photograph completely devoid of any
context from which it could determine whether the photograph
accurately depicted Carter holding a revolver. The jury could not
discharge its duty to determine authenticity on this record.6
6 In K.B., the court suggested Beckley conflicted with
Goldsmith to the extent it required “a conventional evidentiary
foundation to show the authenticity of photographic images
appearing online, i.e., testimony of the person who actually
created and uploaded the image, or testimony from an expert
witness that the image has not been altered.” (K.B., supra, 238

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Respondent contends the photograph of Carter with the
revolver is “self-authenticating” because Carter did not dispute
he was the one depicted or that it came from his Facebook page.
Even if the photograph did depict him and came from his social
media account, Carter vehemently disputed when and where the
photograph was taken and whether it depicted him holding a real
gun. A concession that he was the one in the photograph did
nothing to rebut these concerns, so the content of the photograph
did not render it “self-authenticating.” (Cf. Goldsmith, supra, 59
Cal.4th at pp. 271-272 [in traffic violation case, counsel conceded
photograph from red light camera accurately depicted defendant
at intersection].)
Respondent also cites several cases finding adequate
foundation for photographs, but they involved significantly more
evidence than presented here. For example, in K.B., officers
extracted the photographs at issue directly from a suspect’s cell
phone, which matched photographs obtained by officers from
Cal.App.4th at p. 997.) Goldsmith involved photographs and
video from a red light camera, and the court distinguished
Beckley “because the issue there concerned the admission of a
photograph found on a social media Web site, which presented
questions of accuracy and reliability different from the evidence
here.” (Goldsmith, supra, 59 Cal.4th at pp. 272-273, fn. 8.) The
court emphasized these differing factual scenarios “serve to
demonstrate the need to carefully assess the specific nature of
the photographic image being offered into evidence and the
purpose for which it is being offered in determining whether the
necessary foundation for admission has been met.” (Ibid.) In any
case, the Facebook photograph of Carter lacked any of the
evidence mentioned in either Beckley or Goldsmith to establish
foundation.

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Instagram and had time stamps of approximately five hours
before the defendant was arrested. The same photographs were
posted on the defendant’s own Instagram account, which required
a username and password. And when the defendant was
arrested, he was wearing the same clothes and found in the same
location as depicted in the photographs. (K.B., supra, 238
Cal.App.4th at pp. 997-998.)
In People v. Valdez (2011) 201 Cal.App.4th 1429, the court
approved the admission of printed pages from the defendant’s
MySpace page depicting written gang notations and the
defendant making gang hand signals. The investigator who
found the page testified he did not know who uploaded the
photographs to MySpace, but he testified only the person who
created the MySpace profile could post on the page. (Id. at
pp. 1433-1434.) The defendant also did not dispute the page
belonged to him or that he appeared in the photographs, and the
overall content of the pages corroborated that he was making
gang signs with his hands. (Id. at pp. 1435-1436.)
Thus, lacking adequate foundation, the photograph should
not have been admitted.
3. Harmless Error
Having found two evidentiary errors, we must decide
whether those errors rendered it reasonably probably appellants
would have received a more favorable outcome in the absence of
these errors. (People v. Watson (1956) 46 Cal.2d 818, 836.)
For Charles, there is no question the errors were harmless.
Both victims identified him as a perpetrator, and Detective
Ramirez’s improper opinion related only to the victims’
identification of Carter. The Facebook photograph only depicted

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Carter, so it would have had little to no impact on the jury’s
deliberations with regard to Charles.
For Carter, Detective Ramirez’s opinion was duplicative of
evidence that at least Brooks was afraid to testify, given Brooks
himself admitted he did not attend prior court hearings because
he “[d]idn’t want to take a risk” of “anything bad happening to me
or my family” and he was still afraid at trial. From that
evidence, jurors could have inferred Brooks’s identification of
Carter changed due to fear of retaliation, even without Detective
Ramirez drawing that inference for them.
Further, the evidence showing Carter as a perpetrator was
overwhelming, notwithstanding Detective Ramirez’s opinion or
the Facebook photograph of Carter with the revolver.
Circumstantial evidence directly linked Carter to the carjacking:
he was driving Cotton’s car several hours later with Charles,
whom the victims unequivocally identified as one of the
carjackers; he fled when engaged by police; he had Cotton’s check
cashing identification card in his pocket; and he had bullets on
him that matched the gun recovered after Charles told the police
where to find it.
Brooks also picked Carter out of the photographic six-pack
the day after the carjacking. At that time Brooks was around 80
percent sure Carter was the perpetrator. Although Brooks
claimed at trial Carter was not one of the carjackers, he
acknowledged Carter was the person he identified in the
photographic lineup, and he would not have identified an
innocent person. In the face of the circumstantial evidence
linking Carter to the carjacking, Brooks’s identification of Carter
was beyond rational coincidence. And as noted, there was
evidence Brooks was afraid to come into court and testify, which

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explained why his identification changed over time. On this
record, there is no reasonable probability Carter would have
obtained a more favorable outcome in the absence of Detective
Ramirez’s improper opinion testimony and the photograph of him
holding a revolver.
4. Reasonable Doubt Instruction
Charles argues the trial court’s reasonable doubt
instruction based on CALCRIM No. 220 violated his due process
rights because it did not expressly instruct the jury it had to find
the prosecution proved each element of the crimes at issue beyond
a reasonable doubt. Instead, the instruction told the jury in
relevant part, “A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People prove a
defendant guilty beyond a reasonable doubt. Whenever I tell you
the People must prove something, I mean they must prove it
beyond a reasonable doubt.” Other instructions set forth the
elements that the prosecution must prove for the charged crimes
and enhancements.
We review the correctness of jury instructions de novo.
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Ramos and
other cases have rejected Charles’s exact challenge to CALCRIM
No. 220. (Ramos, supra, at p. 1088; see People v. Riley (2010) 185
Cal.App.4th 754, 770; People v. Henning (2009) 178 Cal.App.4th
388, 406; People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601.) As
these cases explain, the combination of the language in
CALCRIM No. 220 and the instructions indicating the
prosecution must prove each element of the offenses and
enhancements adequately informed the jury it must find the
elements beyond a reasonable doubt. (See Ramos, supra, at
pp. 1088-1089.) We reject Charles’s argument the use of the word

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“something” renders the instructions “awkward[]” or that
reasonable jurors would not understand they are required to find
every element of the crimes beyond a reasonable doubt. Seeing
no reason to depart from existing authority, we reject his
challenge.
DISPOSITION
We affirm the judgments.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.

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