P. v. Foreman



Filed 3/15/17 P. v. Foreman CA4/2






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN FOREMAN,

Defendant and Appellant.



E064949

(Super.Ct.No. FVI1400207)

OPINION


APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Jonathan Foreman, of three counts of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) The court sentenced him to a total of five years in prison. Defendant contends the court violated his Fourteenth Amendment right to due process of law when it instructed the jury with CALCRIM No. 315 to consider an eyewitness’s certainty when making an identification. We reject this contention and affirm the judgment.
II. FACTS
A. Prosecution Evidence
The information charged defendant with robbery on three separate dates: November 14, 2013, December 26, 2013, and January 2, 2014.
A.J. and two others were working at a check cashing store on Palmdale Road in Adelanto on November 14, 2013. Between 5:30 and 6:00 p.m., a man entered wearing gloves and a white motorcycle helmet with a design on it. He had a gun and demanded money from them. A.J.’s two coworkers handed over money from their registers. The man put the money in a black backpack. He was either Hispanic or a light-skinned Black male.
S.E. was working at a check cashing store on Bear Valley Road in Victorville on December 26, 2013. At approximately 5:00 p.m., a Black man wearing a white and red motorcycle helmet, a black jacket, and dark gloves entered the store and pointed a gun. The man told S.E. he had 10 seconds to put money in a black backpack or the man would shoot him. S.E. did as directed and gave approximately $700 to the man. Surveillance video from a nearby business on the same day showed an orange sedan parking at around 4:20 p.m. At approximately 5:12 p.m., the video showed an individual running away from the store and to the orange sedan, which then drove away.
M.S. was working at a check cashing store on Palmdale Road in Adelanto on January 2, 2014. Between 5:00 and 5:10 p.m., a man with a gun wearing a black “sweater jacket,” black pants, gloves, a black backpack, and a motorcycle helmet entered the store and told M.S., “Give me the money or I’ll fucking kill you.” M.S. put between $9,000 and $10,000 in the man’s backpack. The visor on the helmet did not completely cover the man’s face, and M.S. could see the area of his face below his nose. The man had a thin goatee and was a light-skinned Black male. M.S. picked defendant, who is a light-skinned Black male, out of a photographic lineup as the man who had taken the money. He told the officer he was “100 percent” certain about the identification.
Also on January 2, 2014, between 5:00 and 5:30 p.m., Deputy William Fifita was off duty and shopping at a store near the check cashing store on Palmdale Road. He noticed someone running fast through a breezeway wearing a white and red motorcycle helmet, black pants, and a white dress shirt. The individual got into a “smaller orange brownish four-door” Dodge sedan and took off his helmet. The Dodge had no license plate on the back. The deputy thought the circumstances suspicious and followed the Dodge in his own car. The Dodge was cutting in between cars, making quick lane changes, and speeding. The deputy caught up to the Dodge and drew even with the passenger side of the car. He looked at the driver, and the driver turned his head in the deputy’s direction. The deputy identified defendant as the driver at trial. The deputy returned to the check cashing store after that and discovered a robbery had occurred. He relayed descriptions of the Dodge and defendant to Detective Charles Phillips.
Detective Phillips came across a Dodge matching the description the following day when he was off duty and driving on the freeway. The Dodge was in front of him. He sped up and drove on both sides of the Dodge to get a look at the occupants. Defendant was driving and matched the description Deputy Fifita had provided. The detective also noted the license plate number of the car. He ran the number through a database and discovered defendant was associated with the Dodge.
The detective found two neighboring addresses in Adelanto at which defendant possibly resided. He and several other officers conducted plainclothes surveillance of the addresses, and they eventually served search warrants for both residences. One was defendant’s residence, where officers recovered a white and red helmet that looked like the robber’s, a blue and black backpack, a black sweatshirt, white and gray gloves, a pellet gun, and approximately $6,500 in cash. An orange Dodge Caliber was in the garage at the residence. The mother of defendant’s son, L.A., knew defendant rode motorcycles and drove an orange Dodge sedan.


B. Defense Evidence
L.A. and defendant testified in his defense as follows. Defendant watched their son while she was at work on November 14, 2013. She and defendant went out to dinner after she got home at approximately 5:00 p.m. They were at dinner for approximately an hour and a half to two hours. On December 26, 2013, defendant again watched their son while L.A. was at work, until approximately 4:45 p.m. After that, he went to the gym for an hour and a half to two hours. On January 2, 2014, he watched his son until approximately 4:50 p.m., when he went to visit a friend in Rialto for two and a half to three hours. He was not at the check cashing stores on any of those three dates and has never committed a robbery. Between January 3 and January 6, 2014, defendant went to Las Vegas. He was arrested after that, in mid-January 2014.
The helmet and gloves found at defendant’s residence were not his; they belonged to an associate, T.S., who dropped them at his residence and told defendant to hold them. T.S. is a light-skinned Black man with a mustache similar to defendant’s at the time. The orange sedan in the surveillance video from the December 26 robbery was not defendant’s car. Defendant earned the cash found at his residence through his occupation as a “middle man” between buyers and sellers of property. He had recently earned approximately $5,000 in an automobile transaction.


III. DISCUSSION
Defendant contends the jury instruction to consider an eyewitness’s certainty when making an identification violated his Fourteenth Amendment due process rights because scientific research over the last several decades purportedly shows no correlation between eyewitnesses’ certainty about their identifications and the accuracy of the identifications. We disagree the court violated defendant’s due process rights in giving this instruction.
A. Defendant Has Not Forfeited This Challenge
As a preliminary matter, we reject the People’s assertion that defendant forfeited this argument. The court instructed the jury with CALCRIM No. 315 as follows: “You’ve heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] . . . [¶] How certain was the witness when he or she made an identification?” The instruction also listed over a dozen other factors for the jury to consider in evaluating eyewitness testimony, such as whether the witness was under stress when he or she made the observation, how much time had passed between the witness’s observation and the identification, whether the witness and defendant were of different races, and so on. (CALCRIM No. 315.)[1]
After so instructing the jurors and releasing them for the day, the trial court referenced an off-the-record discussion in which defense counsel asked the court to delete the certainty factor from CALCRIM No. 315. The court stated: “Your request was based upon your representation all of the research makes it clear that certainty of a witness’s identification is not an accurate reflection of accuracy. Certainty just means that they could be absolutely positive and just as equally wrong.” Defense counsel responded: “Yes.” The court then noted the prosecutor objected to deleting the factor, and both the prosecutor and defense counsel agreed “that there is no case that we know of that states that this is not an accurate state of the law. There is no case [sic] we should not include that factor.” The court decided to include the certainty factor because the instruction had “been around a lot longer, and the cases and all the research is one that has been upheld.”
According to the People, nothing in the record suggests defendant objected to the instruction specifically on the basis of due process. It is true the court did not invoke due process in summarizing the off-the-record discussion, nor did defense counsel supplement the court’s summary with a reference to due process.
But it is clear defendant otherwise made the same argument he advances on appeal—that is, the certainty factor is improper because there is no correlation between eyewitness certainty and accuracy in identification. This sufficiently preserved defendant’s argument. “As a general matter, no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.” (People v. Yeoman (2003) 31 Cal.4th 93, 117.) Defendant’s due process claim is of this type.
B. The Certainty Instruction Did Not Violate Defendant’s Due Process Rights
“‘[F]undamental fairness [is] the touchstone of due process . . .’ [citation] and so a due process violation is usually established when the state proceeds in a manner that renders a trial fundamentally unfair. Thus, a ‘jury instruction’ may ‘“so infuse[] the trial with unfairness as to deny due process of law.”’ [Citation.] ‘The . . . question for us is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.”’” (People v. Rivas (2013) 214 Cal.App.4th 1410, 1422.) We apply the de novo standard of review. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)
Under settled case law, a witness’s level of certainty is a proper consideration in evaluating eyewitness identifications, and use of this factor does not violate due process. For instance, in Neil v. Biggers (1972) 409 U.S. 188, the United States Supreme Court held that a show-up identification did not violate due process even though the show-up procedure used by law enforcement was unnecessarily suggestive. (Id. at pp. 195-196, 199-200.) This was because, under the totality of circumstances, the eyewitness’s identification was nevertheless reliable. (Id. at p. 200.) The totality of the circumstances “include[d] the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (Id. at pp. 199-200, italics added.) In Manson v. Brathwaite (1977) 432 U.S. 98, when considering whether due process required the exclusion of an identification resulting from an unnecessarily suggestive procedure, the high court again endorsed the level of certainty as a pertinent factor in evaluating the reliability of eyewitness identifications. (Id. at pp. 99, 114 [“[R]eliability is the linchpin in determining the admissibility of identification testimony . . . . The factors to be considered are set out in Biggers. [Citation.] These include . . . the level of certainty demonstrated at the confrontation . . . .”]; accord, Perry v. New Hampshire (2012) 565 U.S. 228, 239, fn. 5 [noting “‘the level of certainty demonstrated at the confrontation’” as a pertinent factor among others when evaluating a witness’s “‘ability to make an accurate identification’”].)
Further, the California Supreme Court approved CALJIC No. 2.92, the CALJIC instruction analogous to CALCRIM No. 315, in People v. Johnson (1992) 3 Cal.4th 1183. CALJIC No. 2.92 stated, in pertinent part: “In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as the other factors which bear upon the accuracy of the witness’ identification of the defendant; including, but not limited to any of the following: [¶] . . . [¶] The extent to which the witness was either certain or uncertain of the identification . . . .” (Id. at pp. 1230-1231, fn. 12.) The Johnson court explained, “CALJIC No. 2.92 normally provides sufficient guidance on the subject of eyewitness identification factors” (id. at pp. 1230-1231), and it expressly rejected the defendant’s challenge to the certainty factor, among others (id. at pp. 1231-1232 [rejecting the contention that there was no evidence to support the certainty factor when the defendant’s expert witness “testified without contradiction that a witness’s confidence in an identification does not positively correlate with its accuracy,” and concluding the court did not err in instructing on the certainty factor]).
Johnson also approved the certainty factor when it summarized “the principles that determine whether the admission of identification evidence violates a defendant’s right to due process.” (People v. Johnson, supra, 3 Cal.4th at p. 1216.) The court explained “[c]onstitutional reliability . . . depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Ibid., italics added.)
Notwithstanding this solid body of law approving of the certainty factor, defendant argues Johnson is not controlling because the court did not consider the precise due process argument he raises here, and he urges us to find a due process violation. We decline. Johnson, as well as the United States Supreme Court authority we discuss, make clear that an eyewitness’s certainty is a proper consideration when evaluating the reliability of the witness’s identification. Defendant cites a host of journal articles and cases from other states’ courts to argue “United States Supreme Court and California precedent on eyewitness identification is dangerously outdated.” Even if we were to agree with defendant, we are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
To be sure, the California Supreme Court has acknowledged scientific research regarding the unreliability of eyewitness identifications, including research showing “the lack of correlation between the degree of confidence an eyewitness expresses in his identification and the accuracy of that identification.” (People v. McDonald (1984) 37 Cal.3d 351, 369, overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914.) But the court’s solution has not been to strike the certainty factor, or any other factors, from the list of permissible considerations in evaluating eyewitness testimony. Instead, “[i]f the defendant wishes to present to the jury information on the unreliability of eyewitness identifications under a particular set of circumstances, he must use means other than a jury instruction, such as expert testimony.” (People v. Wright (1988) 45 Cal.3d 1126, 1153-1154; see also People v. McDonald, supra, at pp. 369, 377.) Defendant could have offered expert testimony demonstrating the lack of correlation between eyewitness certainty and accuracy, like the evidence offered by the defendant in Johnson. (People v. Johnson, supra, 3 Cal.4th at p. 1210.) He did not.
In short, the court did not err in instructing the jury on the certainty factor in CALCRIM No. 315, nor did the instruction render the trial so unfair as to violate defendant’s due process rights.This is especially the case when we consider that the eyewitness identifications were only a fraction of the evidence supporting the judgment. Defendant was associated with the orange Dodge matching the description of the robber’s vehicle. This information led officers to defendant’s residence, where they found items matching what the robber had worn and carried—a white and red motorcycle helmet, black backpack, black sweatshirt, gloves, and a (pellet) gun. They also discovered $6,500 in cash at defendant’s residence. While this was less than the amount the robber had stolen between November 14, 2013 and January 2, 2014, the search of defendant’s residence occurred several weeks after the last robbery, and defendant had just returned from a trip to Las Vegas. The jurors could have inferred—and reasonably so—that defendant had disposed of some cash in between the last robbery and the search. Even if we apply the “harmless beyond a reasonable doubt” standard of error that defendant urges (Chapman v. California (1967) 386 U.S. 18, 24), the circumstantial evidence connecting defendant to the crimes was strong, and we would find no prejudice in instructing the jury to consider the certainty of eyewitness identifications.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

SLOUGH
J.


[1] The complete list of questions the instruction directed the jury to consider was: “Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness’s ability to observe[,] such as lighting, weather conditions, obstructions, distance and duration of observation? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the events and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? [¶] Was the witness able to identify the defendant in a photographic or physical lineup? [¶] Were there any other circumstances affecting the witness’s ability to make an accurate identification?”