Filed 4/22/21 P. v. Bell CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard H. Kirschner, Judge. Affirmed in part, conditionally reversed in part, and remanded with directions.

Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________________

INTRODUCTION

Appellant Jonathon Osha Bell and his codefendant Joe Taylor were convicted of robbing Robyn P., her roommate Reanon G., and her grandmother Virginia P. in the early morning hours of August 16, 2016, and of robbing Katherine L. later that morning. According to the victims, the robberies were executed in a similar manner: Taylor arranged a meeting with a transgender sex worker (first Robyn, then Katherine) through an online advertisement, entered her apartment alone, threatened her with a gun (later determined to be a realistic-looking pellet gun), and called in Bell to join him in taking the victims’ property and dissuading them from reporting the crimes. The day after the robberies, Bell was arrested in his car, which resembled one seen in surveillance video to have parked near Katherine’s apartment shortly before she was robbed. Katherine’s phone was found in Bell’s car. Many of the victims’ possessions were found in Bell’s and Taylor’s homes, and the men’s DNA and fingerprints were found in Katherine’s apartment.

Bell and Taylor were also identified by the victims. Robyn, Reanon, and Katherine identified them in six-pack photographic lineups and at trial. Virginia did not testify, but her six-pack identifications of Bell and Taylor were admitted into evidence. Reanon and Katherine testified they were certain of their identifications. The trial court instructed the jury, per CALCRIM No. 315, to consider the eyewitnesses’ degree of certainty (along with 14 other factors) in evaluating the reliability of their identifications. Bell’s trial counsel did not object to this instruction or request modification. Nor did he seek to call an expert on eyewitness identifications.

The jury convicted Bell of robbing all four victims. In April 2019, the trial court sentenced Bell to an aggregate prison term of 25 years, which included a five-year enhancement for a prior serious felony under Penal Code section 667, subdivision (a). Neither the court nor the parties exhibited awareness of the court’s recently granted discretion to strike the five-year enhancement under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) (S.B. 1393). The court also imposed fines and fees, without considering Bell’s ability to pay.

On appeal, Bell contends (1) the court violated his due process rights by instructing the jury to consider the eyewitnesses’ degree of certainty; (2) his trial counsel was unconstitutionally ineffective for failing to seek the appointment of an expert on eyewitness identifications; (3) we should remand to the trial court with instructions to consider whether to strike the five-year enhancement under S.B. 1393; and (4) the court erred under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) by imposing fines and fees without considering his ability to pay. The People agree that remand under S.B. 1393 is appropriate, and recognize that Bell may assert his Dueñas claim on remand. The People otherwise dispute Bell’s claims.

We affirm Bell’s convictions. Under People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez), Bell’s claim of instructional error is both forfeited for failure to object below and without merit. Moreover, assuming, arguendo, that the instruction on eyewitness certainty violated Bell’s due process rights, we conclude the error was harmless beyond a reasonable doubt in light of the compelling evidence of Bell’s identity as one of the robbers. In the face of this compelling evidence and the record’s silence regarding defense counsel’s reasons for failing to call an eyewitness-identification expert, Bell has not shown that his counsel’s performance was either deficient or prejudicial. However, we agree with the parties that it is appropriate to remand to the trial court for a resentencing hearing under S.B. 1393. We decline to address Bell’s Dueñas claim, which he may assert on remand.

PROCEEDINGS BELOW

1. Prosecution Case

The People charged Bell with four counts of first degree robbery (Pen. Code, § 211), each concerning a different victim, viz., Katherine (count six), Reanon (count seven), Virginia (count eight), and Robyn (count ten).^[1] The People alleged that Bell had suffered three prior convictions qualifying as strikes within the meaning of the three strikes law (id., §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that one of these prior convictions also qualified as a serious felony within the meaning of Penal Code section 667, subdivision (a).

1. The Robberies at Robyn’s Apartment

1. Robyn’s Eyewitness Testimony

Robyn testified that on August 15, 2016, she was living in an apartment in Tarzana with her grandmother Virginia, who was temporarily sharing a room with Robyn’s friend Reanon. Robyn was a sex worker, and she advertised her services on webpages reserved for transgender sex workers. Beginning around 11:00 p.m. on August 15, and continuing to around 1:00 a.m. the next morning (August 16), she received many calls and text messages from a man purporting to be a prospective client. Shortly before 1:00 a.m., she communicated with the man -- whom she identified as Taylor -- by video, and arranged a meeting at her apartment, directing Taylor to park nearby.

An unspecified time later, Robyn saw another man (whose hairstyle was shorter than Taylor’s long dreadlocks) park a car where she had told Taylor to park, then drive away. Taylor claimed by text message that he had parked there and driven away because the situation seemed suspicious, but soon reiterated his desire to meet Robyn. After Taylor appeared outside her apartment building on foot, Robyn welcomed him into her apartment and led him to her bedroom.^[2] Taylor drew a gun (later determined to be a realistic-looking pellet gun) and pointed it at Robyn’s head. Moments after phoning someone, Taylor forced Robyn at gunpoint to open her front door.

A man -- whom Robyn identified as Bell -- entered.^[3] Bell and Taylor took Robyn to her bedroom, where Bell began searching her possessions while Taylor stood guard with the gun. Bell and Taylor then took Robyn to the separate room where Reanon and Virginia were sleeping, and forced her to wake the other women. Bell proceeded to “ransack” the apartment while Taylor continued standing guard. In the process, Bell took photos of the women’s identification cards and threatened that he and Taylor would “handle” the women if they ever reported them to the police.

After several hours in the apartment, Bell and Taylor left. They took many of the women’s possessions, including a Louis Vuitton purse belonging to Robyn, a television belonging to Robyn and Virginia, and a laptop, speaker, and Michael Kors purse belonging to Reanon.

Robyn made a 911 call, which was played for the jury. Robyn admittedly lied during the call, initially claiming she was Reanon (before allowing Reanon to speak) and maintaining that Taylor had forced his way into her apartment (rather than being invited in to complete a sexual transaction). During the call, Reanon reported that Bell had been wearing a Nike sweatshirt.^[4]

2. Additional Eyewitness Identifications

Reanon’s trial testimony generally corroborated Robyn’s account (from the point at which Robyn woke her, which Reanon estimated as between 1:00 and 3:00 a.m.). Reanon identified Bell and Taylor as the robbers. She testified, “My main focus at the time was Bell because he was the one going through all my stuff.” She further testified, “I thought that they were going to kill us because they didn’t have a mask. They weren’t using anything to hide their identity. They were there for so long, I didn’t think that they were going to let us live.” She confirmed the robbers spent several hours in the apartment, and testified she was “100 percent” certain Bell and Taylor were the robbers.

Robyn and Reanon testified that some weeks after the robberies, they identified Bell and Taylor in six-pack photographic lineups.^[5] Los Angeles Police Department (LAPD) Detective Juan Gonzalez testified that in the months after the robberies (in September and October 2016), Virginia also identified Bell and Taylor in six-packs. Virginia did not testify, but the six-packs in which she identified Bell and Taylor were admitted into evidence.

2. The Robbery of Katherine

Katherine testified that on August 16, 2016, she was working as a sex worker out of her apartment in Sherman Oaks (about five miles from Robyn’s apartment in Tarzana). That morning, a man contacted her through an online advertisement and arranged a meeting at her apartment. Around 10:30 a.m., the man informed her by phone that he had arrived, and she saw the man -- whom she identified as Taylor -- walking toward her apartment. She saw a second man -- whom she identified as Bell -- exit a gray Volkswagen nearby. The prosecutor played surveillance video from the exterior of Katherine’s apartment building, which showed a similar car park near the building on the same date, after which a man (whom Katherine identified as Taylor) walked by the car and a second man (whom Katherine identified as Bell) exited the car.^[6]

Katherine testified that she brought Taylor to her bedroom, where he grabbed her neck, drew a (pellet) gun, and repeatedly raped her.^[7] Taylor then sent text messages to someone and forced Katherine to her front door, which Taylor opened.

Bell entered. Bell and Taylor took Katherine to her bedroom and began ransacking her apartment. Bell eventually took Katherine to her kitchen, where she unsuccessfully tried to flee through a locked window. Bell noticed her escape attempt and briefly choked her before bringing her back to her bedroom. Bell tore strips from her bedsheet and used them to bind her hands to her feet, with assistance from Taylor, who retrieved duct tape from her restroom and placed it over her mouth. Eventually, Bell removed the tape and untied Katherine, instructing her not to try anything.

As Bell and Taylor prepared to remove Katherine’s possessions, Bell said to her, “‘This must be killing you, me taking everything away from you, me packing everything.’” Bell also warned Katherine that if she called the police, he would take her away from her family, and she would be kicked out of her building because she was a “prostitute.”

After about three hours, Bell and Taylor left Katherine’s apartment. They took many of her possessions, including a wallet with her identification card, two checkbooks and a credit card bearing her legal name, a laptop, about a dozen designer purses, more than two dozen pairs of designer shoes, and two cell phones (a Samsung and an iPhone).

Katherine and Detective Gonzalez both testified that the day after the robbery, Katherine identified Bell and Taylor in separate six-packs. Katherine testified that Bell had been in her apartment for about three hours, and that she had been able to view Bell’s face and body. She had no doubt Bell and Taylor were the robbers. She further testified that she had never seen Bell or been visited by a personal trainer before the robbery.^[8]

3. The Defendants’ DNA and Fingerprints

Katherine testified she saw Bell drinking from an iced tea bottle and a beer bottle. An LAPD criminalist testified that Bell’s DNA was found on an iced tea bottle and a beer bottle in Katherine’s apartment. An LAPD fingerprint specialist testified that Bell’s fingerprint was found on Katherine’s bedroom closet door.

Taylor’s DNA and fingerprints were also found in Katherine’s apartment. Katherine’s DNA was found on a pair of Taylor’s underwear.

4. The Defendants’ Possession of the Victims’ Property

Katherine and Detective Gonzalez testified that on August 17, 2016 (the day after the robberies), Katherine used a “find my iPhone” application to determine the location of her stolen iPhone. The detective sent officers to the reported location, where they found a gray Volkswagen (matching the car Katherine had reported seeing outside her apartment) registered to Bell. The officers surveilled the car until they saw Bell drive off in it, after which another officer stopped and arrested Bell. The arresting officer testified that Bell was alone in the car, and that Katherine’s stolen iPhone was on the passenger seat next to him.

Another detective testified that she executed a search warrant at Bell’s home, where she found Robyn’s stolen Louis Vuitton purse and Reanon’s stolen Michael Kors purse and speaker. She further found many of Katherine’s stolen belongings, including her wallet (with her identification card), her checkbooks, her credit card, her laptop, her Samsung phone, half a dozen of her designer purses, and more than a dozen pairs of her designer shoes.

A similar number of Katherine’s stolen purses and shoes were found at Taylor’s home, along with Robyn and Virginia’s stolen television and Reanon’s stolen laptop. A realistic-looking pellet gun was found in Taylor’s car. Taylor was arrested two days after the robberies (on August 18, 2016).

2. Defense Case

Neither Bell nor Taylor testified. Bell called two alibi witnesses. The first, Jorge Bermudez-Soriano, testified that beginning the night of August 15, 2016, and continuing into the early morning of August 16 (the morning of the robberies), he and Bell attended a Nike-sponsored running event in downtown Los Angeles, during which Nike distributed free clothing. He authenticated photos of Bell participating in the event. Around 1:00 a.m., Bell drove Bermudez-Soriano to Reseda (near Tarzana, the area of Robyn’s apartment), where Bell dropped him off around 1:30 a.m.

Bell’s second alibi witness, Keyote Gilmore, testified that around 10:00 a.m. on August 16, 2016, he hired Bell as a personal trainer at a coffee shop in Sherman Oaks (the area of Katherine’s apartment).^[9] Although Gilmore had no record of this meeting, he claimed to remember its date and time because it occurred shortly after he had torn his Achilles tendon. He could not recall the month in which he had torn his Achilles tendon, first stating he tore it “probably [in] April or May” and then stating he tore it in “April, May, end of May, beginning of June, around there.”

3. Jury Instructions and Closing Arguments

The court instructed the jury, per CALCRIM No. 315, to consider 15 specified factors in evaluating the reliability of an eyewitness identification. The factors included, inter alia, how certain the witness was when she identified the perpetrator, and various factors relating to the witness’s opportunity to observe the perpetrator (e.g., how well the witness could see the perpetrator, and for how long). Bell did not object to this instruction or request modification. The court also instructed the jury, per CALCRIM No. 376, that the jury could find sufficient evidence to convict either defendant of robbery if it found that (1) the defendant knew he possessed certain property; (2) the property had recently been stolen from the victim; and (3) there was at least “slight” supporting evidence of guilt.

In her closing argument, the prosecutor emphasized the DNA, fingerprint, and stolen-property evidence, including the evidence that Bell’s DNA was found on beverage bottles in Katherine’s apartment, Bell’s fingerprint was found on Katherine’s bedroom closet door, Katherine’s phone was found in Bell’s car at the time of his arrest, and a “treasure trove” of all four victims’ property was found in Bell’s and Taylor’s homes. The prosecutor referred to the eyewitness identifications only briefly, arguing they corroborated each other.

Bell’s counsel argued the prosecution had failed to prove Bell’s identity as one of the robbers beyond a reasonable doubt, particularly in light of Bell’s alibis for each incident.^[10] He emphasized the prosecution’s failure to present any cell phone records reflecting Bell’s presence at the crime scenes or his communications with Taylor. He challenged the reliability of the six-pack identifications, arguing the six-packs were suggestive and the identifications were tainted by the victims’ previous viewing of Bell’s Facebook photo. He also challenged the reliability of the eyewitness testimony, noting inconsistencies in the victims’ statements before and at trial, and reminding the jury that two victims had erroneously described Bell’s eyes as green. Bell’s counsel conceded the victims’ recently stolen property had been found in Bell’s possession, but implied Bell had merely received the property from Taylor, whom Bell undisputedly knew. He argued Bell had left his DNA on beverage bottles in Katherine’s apartment when he purportedly visited her as a personal trainer, and noted the absence of any DNA or other forensic evidence from Robyn’s apartment.

In rebuttal, the prosecutor noted she “c[ould]n’t overstate” the importance of the jury instruction on the defendants’ possession of recently stolen property (CALCRIM No. 376), and again reviewed the evidence that the victims’ stolen property was found in Bell’s and Taylor’s homes. She also reviewed the evidence that Katherine’s phone was found in Bell’s car, which resembled the car seen in surveillance video to have parked near Katherine’s apartment around the time of the robbery there. She reminded the jury of the fingerprint and DNA evidence. She referred to the eyewitness identifications only in conjunction with the aforementioned evidence, and without mentioning CALCRIM No. 315 or the witnesses’ degree of certainty.

4. Verdicts and Sentencing

The jury convicted Bell of the first degree robberies of Robyn, Reanon, Virginia, and Katherine. The jury convicted Taylor of the same robberies, as well as the other offenses with which he was charged. Bell admitted the truth of the allegations that he had suffered three prior convictions qualifying as strikes within the meaning of the three strikes law, one of which also qualified as a serious felony within the meaning of Penal Code section 667, subdivision (a). Bell moved to strike all three prior strikes, and the court granted the motion in part, striking two prior strikes but leaving one in place.

In April 2019 (shortly after the effective date of S.B. 1393), the court sentenced Bell to an aggregate prison term of 25 years, comprising a 12-year term (the six-year upper term, doubled under the three strikes law) on count six (the robbery of Katherine), consecutive 32-month terms on each of the three other robbery counts, and a five-year enhancement under Penal Code section 667, subdivision (a). Neither the court nor the parties exhibited awareness of the court’s recently granted discretion under S.B. 1393 to strike the five-year enhancement. Without considering Bell’s ability to pay, the court imposed a restitution fine, a parole revocation fine (stayed pending successful completion of parole), criminal conviction assessments, and court security assessments.

Bell timely appealed.

DISCUSSION

Bell contends (1) the trial court violated his due process rights by instructing the jury, per CALCRIM No. 315, to consider the eyewitnesses’ degree of certainty in evaluating the reliability of their identifications; (2) his trial counsel was unconstitutionally ineffective for failing to seek the appointment of an expert on eyewitness identifications; (3) we should remand to the trial court with instructions to consider whether to strike the five-year enhancement for a prior serious felony under S.B. 1393; and (4) the court erred under Dueñas, supra, 30 Cal.App.5th 1157 by imposing fines and fees without considering his ability to pay. We reject Bell’s challenges to his convictions, but agree (as do the People) that remand under S.B. 1393 is appropriate. We decline to address Bell’s Dueñas claim, which he may assert on remand.

1. Instruction on Eyewitness Certainty

Bell contends the trial court prejudicially violated his due process rights by instructing the jury, per CALCRIM No. 315, to consider the eyewitnesses’ degree of certainty in evaluating the reliability of their identifications. The People respond that under our Supreme Court’s decision in Sánchez, supra, 63 Cal.4th 411, Bell’s claim of error is both forfeited for failure to object below and without merit. Bell concedes we are bound to reject his claim under Sánchez.

The parties are correct that Bell’s claim of instructional error is foreclosed by Sánchez. There, the trial court delivered CALJIC No. 2.92 (CALCRIM No. 315’s predecessor), and the defendant contended on appeal that the court erred in instructing the jury to consider the certainty factor. (Sánchez, supra, 63 Cal.4th at 461.) Our Supreme Court first held that the defendant had forfeited the contention by failing to request modification of the instruction. (See id. at 461-462.) It then proceeded to reject the contention of error, adhering to prior precedent in which -- despite acknowledging scientific studies questioning the correlation between certainty and accuracy -- the court had “specifically approved CALJIC No. 2.92, including its certainty factor.” (Id. at 462.) Although Sánchez’s holding on the merits of this issue is under review in People v. Lemcke (June 21, 2018, G054241) [nonpub. opn.], review granted October 10, 2018, S250108, we remain bound to follow Sánchez. (See People v. Rodriguez (2019) 40 Cal.App.5th 194, 200 [trial court did not err by instructing jury on certainty factor per CALCRIM No. 315; Court of Appeal was bound by Sánchez notwithstanding pending review in Lemcke].)

Even assuming, arguendo, that the instruction on eyewitness certainty violated Bell’s due process rights, we conclude the error was harmless beyond a reasonable doubt in light of the compelling evidence of Bell’s identity as Taylor’s accomplice in robbing all four victims.^[11] (See Sánchez, supra, 63 Cal.4th at 462-463 (maj. opn.) [any error in instructing jury on eyewitness certainty was harmless beyond reasonable doubt, where ‘“the eyewitness identifications were far from the only evidence connecting defendant to the crimes”’]; id. at 495 (conc. opn. of Liu, J.) [same].) There was overwhelming evidence of Bell’s identity as Taylor’s accomplice in robbing Katherine, including (1) Bell’s DNA on two beverage bottles in Katherine’s apartment; (2) Bell’s fingerprint on Katherine’s bedroom closet door; (3) surveillance video of a car resembling Bell’s parking near Katherine’s apartment shortly before the robbery; and (4) Bell’s possession of Katherine’s phone, identification card, checkbooks, and many other belongings when he was arrested the day after the robbery. Bell’s identity as Taylor’s accomplice in robbing Katherine, in turn, was powerful evidence that he was Taylor’s accomplice in committing the similar robberies at Robyn’s apartment earlier the same morning, particularly in light of Bell’s possession of several of Robyn’s and Reanon’s stolen possessions at the time of his arrest.^[12]

On this record, there is no reason to believe the jury relied on eyewitness certainty in convicting Bell. In closing arguments, the prosecutor placed little weight on the eyewitness identifications, instead emphasizing the DNA evidence, fingerprint evidence, and evidence of the defendants’ possession of the victims’ stolen property. She similarly emphasized the instruction on the defendants’ possession of recently stolen property (CALCRIM No. 376), and failed even to mention CALCRIM No. 315 or eyewitness certainty. Finally, eyewitness certainty was only one of 15 factors identified in CALCRIM No. 315. Bell does not challenge the inclusion of factors concerning the witnesses’ opportunities to observe the perpetrators, which weighed in favor of the identifications’ reliability, as the witnesses’ testimony indicated they had ample opportunities to observe and even interact with the robber they identified as Bell.

In sum, we conclude beyond a reasonable doubt that the jury would have delivered the same verdicts even had the eyewitness certainty factor been omitted from CALCRIM No. 315. Thus, even disregarding forfeiture and assuming, arguendo, that the factor’s inclusion violated Bell’s due process rights, the error was harmless. (See Sánchez, supra, 63 Cal.4th at 462-463.)

2. Counsel’s Failure to Call an Expert

Bell contends his trial counsel was unconstitutionally ineffective for failing to seek the appointment of -- and call as a witness at trial -- an expert on eyewitness identifications. The decision to call an expert witness to testify about the psychological factors impacting witness identification is a tactical matter for counsel to decide. (See, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995; People v. McDonald (1984) 37 Cal.3d 351, 377, overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896.) Here, the record is silent regarding defense counsel’s reasons for failing to call an eyewitness-identification expert. Accordingly, Bell must show there is no conceivable tactical reason for his counsel’s omission (see People v. Johnsen (2021) 10 Cal.5th 1116, 1165), or that his counsel failed to investigate this issue to the extent necessary to make a reasonable tactical decision (see In re Gay (2020) 8 Cal.5th 1059, 1079). Further, Bell must show a reasonable probability that he would have obtained a more favorable result but for his counsel’s omission. (Id. at 1086.)

Bell has not met his burden to show that his trial counsel’s performance was deficient. Bell does not challenge the extent of his counsel’s investigation -- a matter on which the record is silent. His counsel might have consulted an eyewitness-identification expert and made an informed decision not to call one. There are conceivable tactical reasons for that decision, including a fear that the prosecutor would elicit damaging testimony from such an expert on cross-examination. For instance, the expert might have testified that he or she was unaware of any case in which an eyewitness identification proved to be erroneous despite being corroborated by DNA and fingerprint evidence (as Katherine’s identification of Bell was). The expert’s testimony might also have indicated that the victims’ ample opportunities to observe the perpetrators weighed in favor of the reliability of their identifications. We conclude Bell has failed to show his counsel was deficient for failing to call an eyewitness-identification expert. (See People v. Datt (2010) 185 Cal.App.4th 942, 953 [“Since defendant has failed to establish that his trial counsel failed to consult an expert or that such an expert would have been able to provide favorable testimony, he has not shown that his trial counsel was deficient in failing to present expert eyewitness identification testimony”].)

We further conclude Bell has not met his burden to show he was prejudiced by his counsel’s omission. As explained above, even disregarding the eyewitness identifications, there was compelling evidence of Bell’s identity as Taylor’s accomplice in robbing each victim. This non-eyewitness evidence was the focal point of the prosecutor’s closing arguments. While the prosecutor referenced the eyewitness identifications, as Bell acknowledges, his counsel “point[ed] out the flaws in the identifications during cross examination and argument . . . .” Bell’s assertion that expert testimony would have “added untold weight to counsel’s argument and cross examination,” is entirely speculative and ignores the ample other evidence of his guilt. We conclude Bell has failed to show a reasonable probability that had his counsel called an eyewitness-identification expert, he would have obtained a more favorable result.

The cases on which Bell relies do not assist him. Two are inapposite, as they did not address the merits of a claim of ineffective assistance of counsel. (See Rose v. Superior Court (2000) 81 Cal.App.4th 564, 566, 572-576 [trial court erred by failing to comply with Court of Appeal’s order to conduct evidentiary hearing on ineffective-assistance claim]; People v. McDonald, supra, 37 Cal.3d at 371-376 [trial court erred by excluding testimony of eyewitness-identification expert].) Another found no merit in an ineffective-assistance claim, observing that “[e]xpert testimony on the psychological factors affecting eyewitness identification is often unnecessary,” and concluding, as we do here, that a defendant failed to show his counsel could have obtained a more favorable result by calling an eyewitness-identification expert. (See People v. Lewis and Oliver, supra, 39 Cal.4th at 995-996.) The final case on which Bell relies is distinguishable, as it faulted defense counsel for failing to adequately investigate whether to call a time-of-death expert, and it relied on extensive evidence concerning counsel’s investigation and decisionmaking. (See In re Long (2020) 10 Cal.5th 764, 767, 773-785.) In sum, Bell has failed to show that his trial counsel’s performance was either deficient or prejudicial.

3. Sentencing Claims

Bell contends we should remand to the trial court with instructions to decide whether to exercise its discretion under S.B. 1393 to strike the five-year enhancement imposed under Penal Code section 667, subdivision (a). He further contends that under Dueñas, supra, 30 Cal.App.5th 1157, the court erred by imposing fines and fees without considering his ability to pay. The People agree that remand under S.B. 1393 is appropriate. Although the People argue Bell has forfeited his Dueñas claim on appeal, they recognize Bell may assert his Dueñas claim on remand.

We agree remand is appropriate, as the court appeared unaware of its discretion to strike the five-year enhancement, and there is no clear indication in the record that the court (which struck two of Bell’s three prior strikes) would have declined to strike the enhancement had it been aware of this discretion. (See People v. Henderson (2020) 46 Cal.App.5th 533, 561.) We decline to address Bell’s Dueñas claim, which he may assert on remand.

DISPOSITION

Bell’s convictions are affirmed. His sentence is conditionally reversed. The matter is remanded to the trial court with directions to decide, at a resentencing hearing at which Bell has the right to be present with counsel, whether to exercise its discretion to strike the enhancement imposed under Penal Code section 667, subdivision (a). (See People v. Rocha (2019) 32 Cal.App.5th 352, 359-360.) If the court elects to strike the enhancement or otherwise alter Bell’s sentence, it shall issue an amended abstract of judgment and forward it to the California Department of Corrections and Rehabilitation. If the court elects not to strike the enhancement or otherwise alter Bell’s sentence, it shall reinstate the original sentence.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.

^[1] The People charged Taylor with the same four robbery counts, as well as several counts of sexual assault crimes against Katherine and an additional robbery count concerning an unrelated victim, Bianca F. At trial, Bianca testified that she (like Robyn and Katherine) was a transgender sex worker, and that on July 30, 2016 (about two weeks before the other charged robberies), Taylor robbed her at gunpoint in her apartment after masquerading as a client. Because Taylor is not a party to this appeal and Bell was not accused of any crime against Bianca, we do not further address the evidence concerning Bianca. Taylor, like Bell, was convicted on all counts.

^[2] Robyn testified that Taylor arrived at her apartment around 1:00 a.m. (when Bell was occupied elsewhere, according to an alibi witness). However, she confirmed that during the preliminary hearing, she testified that Taylor arrived at her apartment around 2:00 or 2:30 a.m.

^[3] On cross-examination, Robyn acknowledged that she had reported to the police that Bell’s eyes (which were brown) were green or hazel. She further acknowledged that before trial, she had never reported that the driver who initially parked outside her apartment was not Taylor.

^[4] As set forth in more detail below, one of Bell’s alibi witnesses testified that Bell attended a Nike-sponsored running event (during which Nike distributed free clothing) at or near the time of the robberies at Robyn’s apartment. Bell’s other alibi witness testified that in August 2016, Bell was sponsored by Nike in his work as a personal trainer.

^[5] When Robyn and Reanon made their six-pack identifications, they had already seen Bell’s and Taylor’s names and photos on Facebook. Robyn had viewed Taylor’s Facebook page when she first communicated with him about his requested transaction. After the robberies, she had viewed Taylor’s Facebook page again, found a link to Bell’s page on it, and shared her findings with Reanon.

^[6] Katherine acknowledged that before trial, she had never identified the man who exited the car outside her apartment as Bell. She further acknowledged that she had told police Bell’s eyes were green.

^[7] Katherine testified that during the robbery, she told Bell that Taylor had raped her, and Bell told both her and Taylor that Taylor “wasn’t supposed to do that”.

^[8] Before trial, Bell’s counsel claimed Bell had visited Katherine’s apartment before the robbery in his capacity as a personal trainer. On cross-examination by Bell’s counsel, Detective Gonzalez confirmed Bell’s counsel had made this claim. However, no evidence supporting Bell’s counsel’s claim was produced at trial.

^[9] Gilmore testified a friend had recommended Bell as a personal trainer in part because Bell was sponsored by Nike.

^[10] Bell’s counsel acknowledged that even if Bell parted ways with Bermudez-Soriano in Reseda at 1:30 a.m., as Bermudez-Soriano testified, Bell could have been present at Robyn’s apartment in nearby Tarzana at 2:00 a.m.

^[11] Bell does not claim there was any doubt that Taylor was one of the robbers. Indeed, in attempting to explain the presence of the victims’ property in his home and car, Bell implies (as his trial counsel implied during closing arguments) that he obtained the victims’ property from Taylor. We note that the evidence against Taylor was even stronger than the evidence against Bell, in light of the presence of Katherine’s DNA on a pair of Taylor’s underwear.

^[12] The robberies at Robyn’s and Katherine’s apartments followed a distinctive modus operandi: Taylor used an online advertisement to arrange a meeting with a transgender sex worker, entered her apartment alone, threatened her with a realistic-looking pellet gun, and called in his accomplice (Bell) to join him in taking the victims’ property and dissuading them from reporting the crimes.