Filed 8/18/26 P. v. Morales CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B338317 (Super. Ct. No. 22CR01500)
Plaintiff and Respondent, (Santa Barbara County)
v.
DUSTIN DANIEL MORALES,
Defendant and Appellant.
Dustin Daniel Morales appeals from the judgment after a jury convicted him of attempted murder of a peace officer (Pen. Code,1 §§ 664, 187, subd. (a)), assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2)), and carjacking (§ 215, subd. (a)). The jury found firearms allegations true as to the attempted murder and assault charges. (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (c).) The trial court found true two strike priors and two serious felony allegations. It sentenced appellant to 68 years to life, plus 50 years in state prison.
1 Unlabeled statutory cites are to the Penal Code.
Appellant contends the court erred by: (1) admitting eyewitness testimony produced by an unduly suggestive identification procedure; (2) instructing the jury on the assault charge incorrectly; and (3) finding appellant’s prior convictions in 2011 and 2017 qualified as serious felonies under current law. The Attorney General correctly concedes the third contention, agreeing People v. Fletcher (2025) 18 Cal.5th 576 (Fletcher); requires remand and retrial on the prior strike allegations. We will otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND Officer James Roach of the Santa Maria Police Department responded to a domestic disturbance call at the River Ranch Apartments in 2020. Officer Roach saw a man with distinctive face and neck tattoos walking toward him as he entered the courtyard. He recognized him as appellant, who was the subject of a BOLO (be on the lookout) issued by the department that morning.
Officer Roach grabbed appellant’s wrists and attempted to arrest him. Appellant broke free, grabbed a concealed pistol from his waistband with his right hand, and began running out of the courtyard. He slipped on a wet patch of grass and fell forward. Officer Roach pulled out his own pistol and ordered appellant to stop. Appellant lifted his left hand in the air as if complying. He then twisted his body toward the officer, fired a single shot in the officer’s direction, stood up, and ran. Officer Roach refrained from returning fire because bystanders were nearby. Detectives later found a single 9mm bullet casing in the grass.
Appellant fled to a nearby auto parts store where he commandeered a van at gunpoint from Carmelo Galvan and his son Ramon Roldan. The California Highway Patrol arrested
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appellant two days later after a high-speed freeway chase in the San Fernando Valley. While appellant awaited trial in this case, a Los Angeles jury convicted him of assaulting two peace officers with a semiautomatic firearm, shooting from a moving vehicle, and shooting at an occupied moving vehicle. (§§ 245, subd. (d)(2), 246, 26100, subd. (c).)
Roldan testified at trial as the only available eyewitness of the carjacking.2 He stated he was reclining in the middle seat of the van as his father began pulling out of the parking space. A white male approached the driver’s side window with a pistol and demanded his father get out. Roldan’s view was partially obstructed, but he saw the right side of the suspect’s face for five or ten seconds. He and his father got out and watched the suspect reverse into a tree before driving away. Roldan pointed at the defendant’s table from the witness stand and identified appellant as the perpetrator.
Prosecutors introduced a six-pack photographic lineup with Roldan’s signature placed next to appellant’s BOLO photo. Roldan testified that officers showed him the lineup at the police station soon after the crime. He recognized appellant “because of the tattoo” on his neck. Roldan added that police showed the same photo to him at the crime scene. This statement elicited an objection from defense counsel. She said she would have moved to exclude the “polluted” lineup from evidence had she known Roldan saw the photo of appellant before seeing it at the police station.
The disclosure surprised the prosecutor as well. He responded that he believed only Roldan’s father saw the BOLO
2 Galvan lived in Mexico at the time of trial and was not
available to testify.
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photo at the crime scene. He offered to confer off the record with the officer who spoke to Roldan and his father the day of the crime. After a recess, he confirmed Roldan might indeed have seen the BOLO photo at the crime scene because he was standing “right next to his father” when the officer showed him. The prosecutor stipulated to exclude the lineup from evidence. The court immediately instructed jurors as follows: “Exhibit 23, the photographic lineup, is going to be excluded from evidence. The fact that the witness was shown a photograph of [appellant] prior to the lineup renders it unreliable, so you’re not to consider that for any purpose.”
The court held an Evidence Code section 402 hearing to determine whether to exclude Roldan’s testimony as the product of unduly suggestive identification procedures. It found Roldan was a credible witness and had an independent basis to identify appellant on the day of the crime and at trial. It denied appellant’s mistrial motion but invited defense counsel to seek curative jury instructions. The court later instructed the jury that “[t]he Santa Maria Police Department failed to disclose information that a police officer showed Ramon Roldan a photograph of [appellant] at the scene prior to the photo line-up. The People are responsible for making sure that evidence in possession of the investigating law enforcement agency is provided to the defense. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.” It also repeated its mid-trial instruction to disregard the photographic lineup.
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DISCUSSION
Eyewitness Identification of Appellant By Carjacking Victim Roldan Appellant contends police officers used unduly suggestive procedures to identify him as the individual who carjacked Roldan and his father. This included showing appellant’s BOLO photo to Roldan immediately after the crime occurred and then asking him to identify appellant in a lineup using the same photo. Appellant argues that admitting this unreliable testimony violated his due process rights. We disagree.
A defendant’s due process rights are violated when a witness identifies them as the result of an unduly suggestive procedure, and their identification is not otherwise reliable under the totality of the circumstances. (People v. Clark (2016) 63 Cal.4th 522, 556.) A court must first determine if law enforcement used a procedure that suggested the defendant’s identity before the witness identified them. (People v. Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa).) If so, the court must then determine if the identification was nonetheless reliable under the totality of the circumstances. (Id. at p. 412.) Relevant factors include the witness’s opportunity to view the suspect during the offense, the witness’s degree of attention, the accuracy of the prior description of the suspect, the witness’s level of certainty when identifying the suspect, and the time elapsed between the offense and the identification. (People v. Cunningham (2001) 25 Cal.4th 926, 989.)
The defendant bears the burden of demonstrating an identification procedure was unduly suggestive or unreliable. (People v. Avila (2009) 46 Cal.4th 680, 700.) On appeal, we independently review the trial court’s determination on these
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points. (Id. at pp. 698-699.) “A claim that an identification procedure was unduly suggestive raises a mixed question of law and fact to which we apply a standard of independent review, although we review the determination of historical facts regarding the procedure under a deferential standard.” (People v. Clark (2016) 63 Cal.4th 522, 556-557.) There is no violation of a defendant’s due process rights if the procedure was not unduly suggestive. (Ochoa, supra, 19 Cal.4th at p. 412.) We must reverse if a due process violation is established unless the People show the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
“‘[S]ingle-person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witness’s mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. [Citation.] The law permits the use of in-field identifications arising from single-person show-ups so long as the procedures used are not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.’” (People v. Garcia (2016) 244 Cal.App.4th 1349, 1359, quoting In re Carlos M. (1990) 220 Cal.App.3d 372, 387.)
Roldan testified the officer displayed a booking photo on his phone and asked if he resembled the man who took their van moments earlier. The record contains no evidence the officer suggested appellant was the carjacking suspect, the subject of a BOLO, or involved in a recent shooting. The department instructed officers at that morning’s briefing to be on the lookout
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for appellant because he presented a safety risk, among other reasons. Officer Roach had personally identified appellant as the shooting suspect. Showing Roldan and his father the BOLO photo was not unduly suggestive in this situation. Because appellant fails to meet his burden of establishing that the identification procedure employed here was unduly suggestive, his arguments regarding the reliability of Roldan’s identifications of him are moot. (See People v. Johnson (2010) 183 Cal.App.4th 253, 272.)
Even assuming the procedures were unduly suggestive, Roldan’s initial identification was reliable under the totality of the circumstances. He was seated in the van and could see the right side of the suspect’s face for between five and ten seconds. He testified appellant’s neck and face tattoos were distinctive, particularly one that was red. He watched the suspect back the van into a tree before driving off. The officer showed him the photo of appellant within 30 minutes of the crime. Roldan testified that his observations—not this photo—enabled him to identify appellant at trial more than three years later. These circumstances weigh in favor of the identification’s reliability. (See People v. Kennedy (2005) 36 Cal.4th 595, 611, disapproved on another point by People v. Williams (2010) 49 Cal.4th 405, 459 [defendant identified three weeks after crime by witness who had observed the assailant from five to ten feet away as the crime was being committed]; see also People v. Cunningham, supra, 25 Cal.4th at p. 990 [witness’s unequivocal identification of defendant supported finding of reliability].)
In addition, the trial court twice instructed the jury to disregard any evidence about the photo lineup because Roldan saw a photo of appellant beforehand. It ensured this portion his
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testimony was struck from the transcript when the jury requested a read back while deliberating. The jury also received an eyewitness identification instruction, CALCRIM 315. It directed them to consider several questions “when evaluating the significance of [a] witness’s certainty in identification . . . .” This included, “Did the witness receive information before or after the identification that may have increased the witness’s level of confidence?” and, “Did the police use procedures that increased the witness’s level of confidence about the identification?” We presume the jury followed these instructions. (People v. Franklin (2016) 248 Cal.App.4th 938, 953.)
Jury Instructions on Assault Charges The trial court instructed jurors as follows on the charge of assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2)): “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person . . . .” The court defined “firearm” in a separate instruction3 but not semiautomatic firearm. Appellant did not request this definition below but contends the trial court should have done so sua sponte. We review this contention de novo, considering the challenged instructions in the context of the instructions and the record as a whole “‘to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible
3 CALCRIM 3146 defined “firearm” as “any device designed
to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.”
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manner.’” (People v. Rivera (2019) 7 Cal.5th 306, 326; People v. Posey (2004) 32 Cal.4th 193, 218.)
Appellant argues “semiautomatic firearm” is a technical term jurors needed defined to determine whether prosecutors proved the elements of this offense. He notes the court could have used the statutory definition at section 17140 (“a pistol with an operating mode that uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger”) or similar bracketed language suggested in CALCRIM 860 (“[a] semiautomatic firearm extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger”).
The trial court’s sua sponte duty to instruct extended to defining those terms “having a technical meaning peculiar to the law. [Citations.]” (People v. Elam (2001) 91 Cal.App.4th 298, 306.) Appellant explains how the term is technical but not how it is peculiar to the law. The dictionary definition of “semiautomatic” in the context of firearms is, “able to fire repeatedly through an automatic reloading process but requiring release and another pressure of the trigger for each successive shot.”4 The People elicited testimony from two police officers who described appellant’s pistol as having these characteristics and differentiated it from a revolver or fully automatic type. “When, as here, a phrase ‘is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.’”
4 Merriam-Webster Dict. Online (2026) <http://www.
merriam-webster.com/dictionary/semiautomatic> (as of July 7, 2026).
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(People v. Rowland (1992) 4 Cal.4th 238, 270-271, quoting People v. Bonin (1988) 46 Cal.3d 659, 698.)
Strike Priors and Serious Felony Allegations Appellant contends the true findings on two prior strike allegations should be vacated pursuant to Fletcher, supra, 18 Cal.5th 576. The Attorney General correctly concedes remand is required for a new trial on these allegations under current law.
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 1) amended section 186.22 by narrowing the definitions of “‘criminal street gang,’” “‘pattern of criminal activity,’” and “what it means for an offense to have commonly benefitted a street gang.” (People v. Tran (2022) 13 Cal.5th 1169, 1206.) After appellant filed his opening brief in this appeal, Fletcher resolved a conflict of authority regarding whether prior convictions with gang allegations are affected by these amendments. The court concluded that “with regard to prior convictions . . . that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7, subdivision (c)(28).” (Fletcher, supra, 18 Cal.5th at p. 587.)
Prosecutors alleged appellant had two serious prior strikes:
a 2011 conviction for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and a 2017 conviction for felon in possession of a firearm (§ 29800, subd. (a)(1)). They alleged appellant committed the crimes for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) This made each a serious felony. (§ 1192.7, subd. (c)(28).) The court admitted seven exhibits during the bifurcated bench trial: a certified RAP sheet, a section 969, subdivision (b) packet, and five “certified priors.” This included plea forms for the 2011 and 2017
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convictions. Prosecutors noted the Los Angeles court found the 2011 and 2017 strike priors to be true. The trial court agreed and imposed an additional 10-year prison term for each of the two strike priors. Division Four of this Court later reversed the true findings in the Los Angeles case. (People v. Morales (Apr. 25, 2025, B330828) [nonpub. opn.].)5 The record here shows appellant’s 2011 and 2017 convictions included gang enhancements, but “provide[s] no information regarding the evidence used to obtain the convictions or [appellant’s] underlying conduct.” (Fletcher, supra, 18 Cal.5th at p. 606.) Neither conviction is considered a serious felony within the meaning of section 1192.7 if not for the gang enhancement. “[T]he current law applicable to this nonfinal proceeding includes Assembly Bill 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. There is no indication that [the prior] conviction was obtained under Assembly Bill 333’s more stringent requirements, and the abstract[] of judgment . . . do[es] not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt. The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.” (Fletcher, at p. 607)
5 Division Four concluded the packets failed to prove
appellant’s 2011 and 2017 convictions qualified as strikes under People v. Renteria (2022) 13 Cal.5th 951, which requires prosecutors seeking a gang enhancement to “show the defendant acted on behalf of a gang rather than [solely] for personal reasons.” (Id. at p. 968.)
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DISPOSITION
The true findings on the strike and the prior serious felony enhancement are reversed pursuant to Fletcher, supra, 18 Cal.5th 576. Appellant’s sentence is vacated. The matter is remanded for retrial on the prior serious felony and strike convictions. (Fletcher, at pp. 607-608; People v. Watts (2006) 131 Cal.App.4th 589, 597-598.) If appellant is not timely retried regarding the prior strikes (see § 1382, subd. (a)(2)) or one or both of the prior strikes are not proven, the trial court shall resentence appellant without the strikes. We also remand the matter for a full resentencing. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED.
CODY, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Stephen Dunkle, Judge
Superior Court County of Santa Barbara
_________________________________
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield, Supervising Deputy Attorney General, Christopher G. Sanchez and Chelsea Zaragoza, Deputy Attorneys General, for Plaintiff and Respondent.