Filed 1/25/18 P. v. Mosely 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

KENDALL SHAWN MOSELY,

Defendant and Appellant.


E065944

(Super.Ct.No. FWV1504150)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina, Kristen Chenelia, and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Kendall Shawn Mosely, of first degree residential burglary, and the court sentenced him to a 13-year prison sentence. (Pen. Code, §§ 459, 460, subd. (a).) Defendant argues the court erred in refusing to give CALCRIM No. 315, relating to the accuracy of eyewitness identifications. We disagree and affirm. The parties did not truly dispute the accuracy of the eyewitness identifications placing defendant at the scene, and defendant argued he was merely “at the wrong place at the wrong time.” The trial turned on the credibility of an accomplice who declined to identify defendant. Under the facts of this case, CALCRIM No. 315 was not required.
II. FACTS
Juan Carlos Gomez Garcia (Garcia) lives in an apartment complex in Fontana, California. There is a vacant lot next to the complex. During the morning of November 3, 2015, Garcia left home and locked his door behind him. He later received a call from the police informing him that someone had broken into his apartment. He returned home and discovered his safe was missing from the apartment, as well as a cellular phone, some keys, medications, and a pellet gun. The police took him to the vacant lot next to the apartment complex, where he discovered the missing items.
Alexandr Pinon is Garcia’s neighbor. That same morning, Pinon heard his neighbor’s dogs barking, which was unusual. He opened his door and saw an unfamiliar car in the carport. It was an older model gray or dark-colored SUV. He observed four or five people jumping over his neighbor’s fence, all wearing sweatshirts with hoods. The people got into the SUV and drove out of the complex. Pinon told his wife to call 911. He and his wife told the 911 operator that the car was black, and he thought there were “maybe” two Hispanic men and three Black men.
Approximately 45 minutes after this first incident, Pinon heard his neighbor’s dogs barking again. This time, when he looked outside, he saw defendant drive a gold BMW into the complex’s carport and back into a parking spot. Defendant was wearing a red shirt and had dreadlocks, and he was alone in the car. Pinon also saw three Black men in the vacant lot behind the complex. They jumped over his neighbor’s fence and entered his neighbor’s home through the patio. He told his wife to call 911 again. He saw the men throw some bags and a safe over a brick wall and into the vacant lot. After the men threw the items over the wall, defendant took off in his BMW.
Pinon spoke with officers shortly after this. At an in-field lineup, he identified defendant as the driver of the gold BMW. Pinon did not identify defendant as one of the men he saw drive off in the SUV, nor did he identify defendant as one of the three men he saw in the vacant lot.
Officer Doug Locey responded to a call about a possible burglary at Garcia’s apartment complex on November 3, 2015. Dispatch mentioned a gold BMW leaving the scene. As Officer Locey neared the location, he saw a gold BMW driving towards him, and when it was about 50 feet away, he saw the driver looking at him. Defendant was the driver, and he was wearing a red shirt and had dreadlocks. There was also a passenger in the car. The BMW quickly reversed and started going in the opposite direction. Officer Locey made a right turn to “try to cut [defendant] off at the pass” and got out of his car. He hid behind a fence so that he could observe the BMW. The BMW backed into a parking spot in the complex’s carport. Defendant and the passenger got out of the car and started running towards the officer, and the officer came out from behind the fence, drew his gun, and ordered defendant to stop. Defendant froze for 10 seconds or so and then began running away from the officer. The officer chased defendant to the wall behind the apartment complex, but gave up the chase when defendant jumped the wall. Another officer apprehended defendant nearby, a little northeast of Garcia’s apartment complex. Defendant had a BMW key on his person and seemed out of breath. When officers searched the gold BMW, they found a handwritten bill of sale. Defendant told Officer Locey that he bought the BMW from the registered owner. Officer Locey discovered the car was, indeed, registered to the person whom defendant had identified.
James Jones, one of the burglars, testified in the prosecution’s case. He had pleaded guilty to residential burglary. During the morning of November 3, 2015, Jones was with three Hispanic men at an apartment in Rialto, California. One of the men, “Jesus,” suggested the four of them burglarize a home. Jesus and the other two Hispanic men drove to the location of the burglary in a black truck. A fifth man, a Black man named “Cue,” drove Jones to the location of the burglary in a white BMW. Jones had known Cue for a matter of weeks. Cue had braids and was wearing a gray shirt and baseball cap that day. Jones did not know Cue’s true name.
Cue dropped Jones off at the apartment complex in Fontana, where Jones met Jesus and the other men in a back alley. Jesus told Jones to wait in the alley for them to throw things over the wall. They threw a pillowcase containing some items and a pellet gun over the wall. Jones did not see a safe. He started panicking at this point and left by foot. No one said anything about the police coming, though he heard the police arriving as he left. On his way out of the apartment complex, he saw Jesus and the other two Hispanic men leave in the black truck. He never saw anyone else running away, and he did not see Cue or the BMW after Cue dropped him off. Police stopped Jones one to two blocks away from the apartment complex.
Jones spoke to Officer Lauren Baker on the day of the burglary. Jones was very evasive with the officer and said he did not know the names of anyone involved. He said he did not know or could not remember any names, and he did not know anyone very well. He described Cue only as the “guy with the dreads.” Jones equates braids with dreadlocks. He told the officer that the man with the dreadlocks handed things over the wall, and the man with the dreadlocks told him the police were coming. He also told the officer that the man drove an “old-school Beemer” that was off-white, not white, but then adopted the officer’s description of a “gold car.” At trial, Jones explained that, to the extent his statements to Officer Baker differed from his trial testimony, it was because he lied to Officer Baker. At the same time, he acknowledged his memory would have been better on the day of the burglary, as opposed to the time of trial, which was approximately two and a half months after the burglary.
Jones testified that he did not understand why he and defendant were charged as codefendants in this case. He never identified defendant as involved in the burglary. He did not know defendant and had never seen him before defendant’s arrest in this case.
Jones did not like “telling on other people” and did not want to testify. He thought it was bad to have a reputation as a “snitch.” He wanted to take responsibility for his actions but he did not want to get his friends into trouble. He would lie to protect his friends.
III. PROCEDURE
Defendant requested that the court instruct the jury with CALCRIM No. 315, “Eyewitness Identification,” as follows:
“You have 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:
“• 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[, and __________ <insert any other relevant circumstances>]?
“• 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 event 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 other participants in the crime?]
“• [Was the witness able to identify the defendant in a photographic or physical lineup?]
“• [__________ <insert other relevant factors raised by the evidence>.]
“Were there any other circumstances affecting the witness’s ability to make an accurate identification?
“The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty.”
The court denied the request to give CALCRIM No. 315. It ruled: “Based on the court’s view of the evidence, identification as to Mr. Mosely is not an issue. It’s certainly the state of the evidence is that [sic] it is undisputed that he was the driver of the gold BMW. So for that reason, and the view of the court, [CALCRIM No.] 315 [is] not appropriate.”
In closing, the prosecutor argued defendant was guilty of aiding and abetting the burglary because he knew the perpetrators intended to commit the crime, and he gave Jones a ride in his “off white or gold BMW” to the scene of the crime. Further, the prosecutor argued, Jones originally told Officer Baker that the man with the dreadlocks, or defendant, warned him the police were coming.
A common thread running through defense counsel’s closing argument was that defendant was at the scene of the burglary by happenstance, and he was not actually involved. For instance, he began with: “Now, when this case first started, I told you this was a case about identification. And the issue would come down to, yes, my client, Mr. Mosely, was in the area but the issue is whether or not he was involved in this crime.” Counsel went on to argue: “[M]y client was at the wrong place at the wrong time. This is an eyewitness identification case. The eyewitness never saw him go into the house. You’re not allowed to speculate. You’re not allowed to guess. You’re not allowed to put in how you feel about the evidence. The evidence is everything that you heard on the stand. [¶] . . . [¶] Now, is it unfortunate that this person happened to be in the same area? Yes, it is. But again, things happen. . . . [¶] Now, Mr. Jones said that there was a white BMW. A white BMW and a gold BMW are two different colors. They’re not the same color. And again, based on the evidence of the eyewitness, if the only thing that connects my client to this case is the fact that he’s in that car.” Later, counsel asserted: “So the only identification again in this particular case is that my client was present. That’s it. That he just happens to be in the wrong place at the wrong time. For all we know, he saw these people doing the craziness and that’s why he left.” And still later, he stated: “The People have not proven this case beyond a reasonable doubt. The evidence does not show that my client was involved. The only thing the evidence shows [is] that my client was there.”
As discussed, the jury found defendant guilty of first degree burglary. The court found true the allegations that defendant had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)). It sentenced defendant to 13 years in state prison, consisting of four years for first degree burglary, doubled for the prior strike, plus five more years for the prior serious felony.
IV. DISCUSSION
We review the court’s refusal to give a requested instruction de novo. (People v. Larsen (2012) 205 Cal.App.4th 810, 824.) “[A] trial court needs to give only those requested instructions that are supported by substantial evidence. [Citation.] In deciding whether defendant was entitled to the instructions urged, we take the proffered evidence as true, ‘regardless of whether it was of a character to inspire belief. [Citations.]’ [Citation.] ‘“Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” [Citations.]’ [Citation.] Even so, the test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that ‘deserve[s] consideration by the jury, i.e., “evidence from which a jury composed of reasonable [people] could have concluded”’ that the specific facts supporting the instruction existed.” (People v. Petznick (2003) 114 Cal.App.4th 663, 677.)
The instruction at issue here, CALCRIM No. 315, “should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” (People v. Wright (1988) 45 Cal.3d 1126, 1144; see also Com. to CALCRIM No. 315 [explaining the court should give the instruction, “if requested, in every case in which identity is disputed.”].)
Here, the court did not err in refusing to instruct the jury with CALCRIM No. 315. Defendant contends the instruction “would have required the jury to focus and determine the accuracy of both the neighbor witness’ [sic] and [Officer] Locey’s identification of Mr. Mosely.” But there was no genuine dispute that Pinon and Officer Locey correctly identified defendant, and there was no substantial evidence from which reasonable jurors could have concluded Pinon and Officer Locey were mistaken. Both men independently identified defendant as the driver of the gold BMW, described his hairstyle (dreadlocks), and described his clothing (a red shirt). After Officer Locey lost defendant in the foot chase, another officer found him nearby and out of breath, and he had a BMW key on him. Defendant essentially admitted to owning the gold BMW when he correctly identified the registered owner from whom he had purchased the car. Thus, there was substantial corroborative evidence underlying each witness’s identification of defendant as the driver of the gold BMW.
Defense counsel’s argument made clear there was no dispute as to whether defendant was at the scene, and it was an eyewitness case only to the extent the eyewitnesses saw defendant present but did not see him participate in the burglary. As we explained above, counsel argued: “The evidence does not show that my client was involved. The only thing the evidence shows [is] that my client was there.” Accordingly, defendant acknowledged he was at the scene of the crime, but argued that he was simply in “the wrong place at the wrong time.” He could hardly do otherwise, given the undisputed evidence that officers apprehended him fleeing from the scene with the BMW key in his pocket. Because there was no genuine dispute over the accuracy of Pinon’s and Officer Locey’s identifications, there was no need for the court to instruct the jury on the factors bearing on the accuracy of eyewitness identifications.
The true dispute concerned the extent of defendant’s participation in the burglary. Pinon and Officer Locey did not see defendant do anything other than drive and park the gold BMW and flee from the scene. Defense counsel relied on the accuracy of their testimony to argue defendant did nothing to aid and abet the burglary. (E.g.: “We heard from the eyewitness who said that my client was not any of the individuals handing anything over in the fence. In fact, my client was only in his car.”) Jones—not Pinon or Officer Locey—was the critical witness linking defendant as an accomplice to the crime. The prosecutor’s case depended on the jurors believing Cue and defendant were one and the same, and on the jurors rejecting Jones’s statement that he did not know defendant. CACLRIM No. 315 helps the jury “[i]n evaluating identification testimony” when the eyewitness identifies the defendant. (CALCRIM No. 315.) Our Supreme Court has directed its use when an eyewitness identifies the defendant and substantial evidence does not corroborate that identification. (People v. Wright, supra, 45 Cal.3d at p. 1144.) But Jones did not identify defendant as the person who drove him to the scene or warned him about police officers—just the opposite. He declined to identify defendant. Thus, neither Jones’s testimony nor the other eyewitnesses’ testimony necessitated CALCRIM No. 315.
V. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

CODRINGTON
Acting P. J.

SLOUGH
J.