Opinion
D075421
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. DAYLAN EDWARD STEVENS, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD277538) APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Following an altercation in which a man in a long-sleeved gray shirt punched another man several times without provocation, Daylan Edward Stevens, who was wearing a long-sleeved gray shirt and a pair of jeans, was arrested nearby. Witnesses positively identified him within hours. At trial, Stevens argued this was a case of mistaken identity; he was not the person who punched the victim. Four eyewitnesses positively identified Stevens at trial as the perpetrator. The prosecutor elicited their levels of certainty in their identification of the defendant, and the court used CALCRIM No. 315, which instructed jurors that they could consider, among other factors, "[h]ow certain . . . the witness [was] when he or she made the identification" when evaluating the accuracy and truthfulness of identifications. The jury found Stevens guilty of battery (Pen. Code, § 243, subd. (d)) and assault (§ 245, subd. (a)(4)), and it found true that he personally inflicted great bodily injury on the victim (§§ 1192.7, subd. (c)(8) and 12022.7, subd. (a)).
Further statutory references are to the Penal Code.
Stevens contends the portion of CALCRIM No. 315 that instructs jurors they can consider the certainty of an eyewitness was erroneous and prejudiced him. We conclude Stevens forfeited this argument by failing to raise it at trial. We further conclude that even were there an objection at trial, the instruction was not given in error, and even if it were, any error was harmless.
I.
BACKGROUND AND PROCEDURAL FACTS
A group of 12 men gathered in San Diego one weekend in May 2018 for a bachelor party for Zachary Y. (Zach). James Christopher T. (Chris), Grant W., and Ian S. attended the weekend celebration. Friday night the group attended a Padres game together at Petco Park, where most of them had one or two drinks. After the baseball game, they returned to their rental to play beer pong and catch up with one another. Around 1:30 a.m. the morning of May 12, the group decided to check out the nightlife in the Gaslamp Quarter. They were an identifiable group, wearing matching shirts that read "Team Zach" or "Team Tanya."
As the group walked down the sidewalk slowly, two or three abreast, they encountered a smaller group of men walking toward them. The second group of men collided into them. There was shouting and pushing and shoving, with members of the bachelor party pushing back.
A man in a red shirt was very aggressive and loud, shoving people in the bachelor party with his forearm and with both hands, and using his weight as leverage. Another man, who wore a gray shirt, participated in the pushing, using both his hands to cause some of the men to fall backwards. Ian asked the men in the red shirt and the gray shirt to move on, and they responded that they wanted to shoot the men in the bachelor party group and were not afraid to do jail time.
Zach wanted to deescalate the situation, so he looked for the leader of the other group and identified a man in a gray, long-sleeved shirt as that person. Zach suggested to that man that they walk away from each other to avoid a fight, but the man in gray said he did not want to; he was not afraid to go to jail. Zach testified that he felt intimidated by the man's threat to get a gun and kill Zach. An African American man who was not part of either group intervened and broke up the interaction.
After the two groups separated, Chris followed behind the others from the bachelor party group. He realized a person was missing, so he turned around and saw Grant standing with the men in the red and gray shirts. Grant had stopped to thank the man who intervened. As Grant finished talking to that man, three of the men who had been pushing his group returned and approached him, yelling at him to apologize. The three men included the man in the red shirt, the man in a gray shirt with a gold chain, and a man who was taller than the other two and who had long hair. Grant testified he wanted to be nonconfrontational, so he apologized and asked the three men if they would accept his apology. As Grant was talking, Chris came up on his right side and stood there, with arms crossed, not speaking.
Chris was focused on the man in the red shirt when he saw a flash of gray, then felt a blow to the right side of his head, just to the side of his right eye, near his cheek. The man in the red shirt punched Grant across his left jaw. Before Chris could respond, he was hit again in the same spot. Grant looked over and saw the man in the gray shirt punch Chris, and Chris fall to the ground. Zach also watched the man in the gray shirt punch Chris two or three times. Ian, who had been walking away when he heard a loud smack that sounded like flesh hitting flesh, turned around and saw Chris being punched by the man in the gray shirt and Grant in a scuffle.
Zach pulled Chris away, and a third punch caught Chris on the chin. Chris's eye was swollen shut and his face was bruised and purple. Chris said he needed an ambulance. While Grant turned to help Chris, the three men ran away. Police arrived between five and ten minutes after the altercation.
Cooper C. was working as a security guard at a bar near where the altercation occurred. He was on the outside patio, where he had an unobstructed view of the sidewalk. He observed the bachelor party group walking along the sidewalk when a group of Latino gentlemen in casual nightclub attire approached in the opposite direction. He saw one of the Latino men wearing a collarless, long-sleeved, gray thermal shirt under a denim jacket deliberately walk into one of the men from the bachelor party and shoulder-check him. He also observed a man in a red T-shirt and wearing gold chains pushing and swinging. He noted that the men in the bachelor party group did not want to have a confrontation, which he could tell because they apologized, even though the Latino men had initiated the contact.
Cooper saw the two groups separate, then three men return: the man in the red shirt, the man in the gray shirt, and a third man in a vest. He saw the man in the gray shirt punch Chris in the head.
Grant gave police a statement when they arrived. He was facing the street, and he saw the man in the gray shirt return on the other side of the street, then enter into the middle of the street and yell something while pointing at Grant's group of friends. Grant pointed out the man in the gray shirt as the man who punched Chris.
Zach was talking to a police officer and facing the street when he also saw the man in the gray shirt across the street, walking toward them and yelling. Zach knew it was the same person who had punched Chris because he remembered talking to that man earlier in the evening and had seen him punching Chris. Ian said the man was in the street, about 15 feet away, threatening to shoot. He knew it was the man who hit Chris because the man was the same height and had the same facial structure, gray shirt, and chain. A couple other friends from their group pointed out the man in the gray shirt as the one who hit Chris. The police officer turned around and looked at the man, who then ran around the corner. Police chased after him.
The Vehicle Stop and Identification
San Diego Police Department patrol officer Robert Nelson was on his bike when he received a call over the radio of a possible battery suspect, possibly in possession of a firearm, running away toward a gray or black Jeep Wrangler. He participated in the stop of the Jeep, along with several other officers.
The Jeep had three occupants. The driver was David A. He was wearing a black T-shirt with a black sweatshirt over it, and a hat. The person in the front passenger seat, Abraham E., was wearing a gray, collared shirt with a dark vest over it. He had on a golf-style hat, but Officer Nelson removed it at Abraham's request. Abraham had a scruff goatee. He was not wearing a gold chain.
Abraham disobeyed officers' commands to put up his hands, instead putting his hands down where police could not see them. He was generally uncooperative and belligerent, refusing to sit on the curb and wait for a police vehicle and refusing to provide requested information like his name.
Stevens was seated in the rear passenger seat behind the driver. He identified himself as the owner of the vehicle, said he was in the military, and gave consent to search the vehicle. Stevens was wearing a gray, collarless, long-sleeved shirt and jeans. He also had on a gold chain. He was clean-shaven and had a high and tight, "military" haircut. Stevens was more lean than Abraham.
Isaac E. was not in the vehicle, but he approached the police officers. He was wearing a bright red shirt. Police arrested him for drunk and disorderly conduct due to alcohol. He was also uncooperative, dropping his weight when officers attempted to search him and refusing to provide information.
Later, police tracked down Grant and Zach to get statements. At that point, police said they had caught the man that Grant had pointed to. Police asked the friends to identify the people involved. Grant, Zach, and Ian were each driven separately in the backs of police cars to a corner where they were shown a man in a red shirt and a man in a gray shirt. Grant and Ian identified Stevens in the gray shirt and the man in the red shirt. Zach also identified the man in the gray shirt, Stevens, as the person who punched Chris. Police showed Zach the man in the red shirt, but Zach was not able to identify him as the other person involved in the altercation. He told police he thought it was the other person, but he was not entirely sure.
Cooper was also asked to identify a couple of potential suspects shortly after the arrests. He positively identified Stevens, but he was not able to positively identify the man in the red shirt because the man he saw later that morning looked more disheveled than the one he had seen during the altercation, and he had no gold chains.
The Charges
Stevens was charged with battery with serious bodily injury (§ 243, subd. (d); count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). Connected to each count, it was also alleged he personally inflicted great bodily injury on the victim (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). He pled not guilty and denied the allegations.
The first trial was held in November 2018, and the jury deadlocked. The court declined to dismiss the case under section 1385. The second trial was held in January 2019.
Identification Trial Testimony
Each of the eye witnesses identified Stevens as the man in the gray shirt. Chris testified that Stevens wore a collarless, athletic, gray shirt and jeans and had short hair. He said he would not recognize him if he saw him again because he never really looked the individual in the face. When defense counsel asked Chris if the man in the gray shirt was wearing a jacket or vest, Chris said he was 85 percent sure the man was not.
Grant described Stevens as wearing a gray, collarless, long-sleeved shirt and a chain necklace. When asked if he had any doubt as to whether Stevens was the person who punched Chris, Grant replied, "Absolutely not." He explained he was standing right there and saw Stevens do it. Grant also identified another man, with longer hair and a dark vest as the third person present when Chris was punched. The prosecutor asked if he was sure the person in the black vest did not punch Chris, and Grant answered, "Absolutely." He said the person who punched Chris was not wearing a black vest or a hat.
Zach described Stevens as wearing a gray, long-sleeved shirt, with no jacket, vest, or hat. He explained that he felt intimidated by Stevens because Stevens had threatened to kill him, and it did not seem like he even worried about the police presence later. When the prosecutor asked if Zach had any doubt in his mind that it was Stevens who punched Chris, Zach answered, "no." When the prosecutor asked him what his level of confidence was at the time he identified Stevens near the scene of the fight, Zach said he was "very confident." In contrast, when asked about the man in the red shirt, Zach said he was about 75 percent sure it was the same guy. He explained that because he had spent time talking to Stevens up close, he was 100 percent sure it was him. He said that the man in the gray shirt had threatened to kill him, so he made sure to remember what that man looked like; he looked over that man and knew who he was from speaking to him individually. He was confident Stevens had punched Chris, but only maybe confident in identifying the man in the red shirt.
At trial Zach was also asked about the other man in gray, and Zach explained that could not have been the person who punched Chris; that man had a different face, wore a hat, and had on a collared shirt and vest—he was "[j]ust a different person." He also testified that had the man who punched Chris been wearing a collared gray shirt and a black vest, he would have described him as "the guy with the black vest."
Ian also described the man who hit Chris as wearing a collarless, long-sleeved gray shirt, and said he had no vest or anything over the shirt. He said the man had a short haircut that was closely buzzed, and he was not wearing a hat. When the prosecutor asked Ian at trial if there was any doubt in his mind about Stevens's identity, Ian responded, "None whatsoever." He recognized the gray shirt and the gold chain.
The prosecutor showed Ian an exhibit with a different man wearing a gray, collared shirt with a vest over it. Ian testified that was not the person who punched Chris because that man had a different body structure, wore different clothing and had on a hat. Ian said the person was "definitely not" the one who punched Chris and explained he chose those words because he recognized the person "as clear as day because they threatened [him], and so [he] clearly [had] a visual of them."
Cooper described the man who punched Chris as the man in the gray thermal with a denim jacket, and that he had a "high and tight military haircut." When he identified Stevens shortly after the incident, he told police, "I a hundred percent guarantee that's him." When the prosecutor asked why he had chosen those words, Cooper explained: "I kept my eye on him throughout the altercation due to his involvement and got a positive ID on him, and nobody else in the group looked like him." The prosecutor asked if Cooper had any doubt in his mind that it was Stevens who punched Chris, and Cooper said, "no." When asked why he was so certain, Cooper again explained: "I got a positive ID on him throughout the entire evening, and he's definitely still fresh in my mind. [¶] . . . [¶] I saw him for the longest duration throughout the altercation, and I kept my eye on him more than anybody else due to his involvement."
When shown a picture of Abraham, Cooper said it was not the person who punched Chris. He explained the man in the picture had facial hair, looked older than the one who hit Chris, and was wearing different attire. The man in the picture had a little goatee, and the person who punched Chris had no facial hair; the man in the picture wore a hat, and the person who punched Chris did not. He also said the vest the man was wearing in the picture was black, not denim. Cooper testified that he relied on Stevens's age, hair style, lack of facial hair, ethnicity, and undershirt to identify him.
Defense counsel challenged Cooper's credibility by pointing out he had earlier stated that the man who punched Chris was wearing a vest. Cooper explained that when he talked to police and at a later hearing he used the word "vest," but he corrected himself at the hearing and explained he meant "denim jacket."
Jury Instructions
The court instructed the jury with CALCRIM No. 315, which lists various factors for the jury to consider when determining whether eyewitness identification was truthful and accurate. One of the factors is "how certain . . . the witness [was] when he or she made the identification."
Verdict and Sentencing
The same day the case was submitted to the jury, it returned guilty verdicts on both counts and true findings on both allegations. Stevens was granted three years of formal probation, and the fines, fees, and assessments that were imposed were stayed pending successful completion of probation.
Stevens timely appealed.
II.
DISCUSSION
Stevens argues the trial court erred in instructing the jury that an eyewitness's level of certainty can be considered when evaluating the reliability of the witness's identification of the defendant. He contends the instruction is erroneous because it reinforces a common misconception that there is a correlation between certainty and the level of the accuracy in an identification when such a correlation is doubtful in light of the latest scientific research. We conclude Stevens forfeited this claim of error. We further conclude the claim fails on its merits, and if it were erroneous, any error was harmless.
A. The Challenge Was Forfeited.
Stevens concedes he did not object to the use of CALCRIM No. 315, but he argues this did not forfeit his right to challenge the instructions because section 1259 permits an appellate court to review an instruction given absent an objection if the substantial rights of the defendant were affected. While we recognize section 1259 permits us to consider the merits of the claim even in the absence of an objection (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249), we decline to do so. Stevens did not object to the instruction or request any modification to it. "If defendant had wanted the court to modify the instruction, he should have requested it. The trial court has no sua sponte duty to do so." (People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez).) Even had this argument not been forfeited, we would reject it.
B. The Jury Instruction Was Not Erroneous.
We review challenges to jury instructions de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) However, as Stevens points out, the question of the propriety of the factor at issue here is currently pending before the Supreme Court. (People v. Lemcke (June 21, 2018, G054241) [nonpub. opn.] , rev. granted Oct. 10, 2018, S250108.) Until such time as the Supreme Court reconsiders whether it is proper for courts to instruct differently about witness credibility, we are bound by the established precedent that holds that the questioned instruction is not erroneous. "Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we will follow the Supreme Court's holding in Sánchez.
In Sánchez, the defendant participated in a series of armed robberies, during the last of which video captured images of the defendant. (Sánchez, supra, 63 Cal.4th at p. 420.) At trial, the defense theory was that defendant was not involved in all the charged robberies. (Ibid.) There had been many identifications in the case, some certain and some uncertain. (Id. at pp. 461-462.) The trial court gave the standard instruction for how to consider eyewitness identification at the time, which was CALJIC No. 2.92. (Sánchez, at p. 461.) It instructed jurors to consider any factor that bore on the accuracy of the identification, including " 'the extent to which the witness is either certain or uncertain of the identification.' " (Ibid.) The Supreme Court compared this instruction to CALCRIM No. 315, which lists among its factors " '[h]ow certain . . . the witness [was] when he or she made the identification.' " (Sánchez, at p. 461.)
The defendant challenged the instruction, arguing research did not support a meaningful connection between a witness's certainty and the accuracy of the identification. (Sánchez, supra, 63 Cal.4th at p. 461.) The court acknowledged that "some courts have disapproved instructing on the certainty factor in light of the scientific studies." (Id. at p. 462.) However, the Supreme Court explained: "Studies concluding there is, at best, a weak correlation between witness certainty and accuracy are nothing new. We cited some of them three decades ago to support our holding that the trial court has discretion to admit expert testimony regarding the reliability of eyewitness identification." (Ibid.)
The court also explained it had "specifically approved" the predecessor to CALCRIM No. 315, CALJIC No. 2.92, "including its certainty factor" in People v. Wright (1988) 45 Cal.3d 1126, 1141 (Wright), and it "reiterated the propriety of including this factor" in People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232. (Sánchez, supra, 63 Cal.4th at p. 462.)
In Wright, the defendant requested the factor to be included in the instruction, and the Supreme Court, citing People v. McDonald (1984) 37 Cal.3d 351, 377, fn. 24 (overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896), explained that a defendant may be entitled to a special instruction that directs the jury's attention to evidence on the record like facts developed during cross-examination of eyewitnesses that support a defense of mistaken identity which could give rise to reasonable doubt of a defendant's guilt. (Wright, supra, 45 Cal.3d at p. 1141.) --------
C. Any Error Was Harmless.
Even if the instruction on witness certainty were erroneous, Stevens has not demonstrated he was prejudiced by it. (See Sánchez, supra, 63 Cal.4th at p. 463.) Here, as in Sánchez, the instruction was stated in a neutral manner, and it did not imply that a witness was more believable if he was more certain in his identification. (See id. at p. 462.) The instruction did not advise the jury what weight to assign to a witness's level of confidence; certainty was just one factor among many for the jury to consider. It also did not change the prosecution's burden of proof, instead reminding the jury that the prosecution bore the burden of proving its case beyond reasonable doubt. (See CALCRIM No. 315.)
The unchallenged portions of CALCRIM No. 315 also instruct jurors evaluating identification testimony to consider how closely the witness was paying attention, whether the witness gave a description and how that description compared to the defendant, the amount of time that passed between the event and the identification, and whether the witness was able to identify other participants in the crime. Testimony elicited regarding these factors supported a conclusion that the eyewitnesses gave truthful and accurate testimony, even in the absence of information about certainty. Thus, even were the inclusion of the factor erroneous, it would be harmless under either the Chapman or Watson standards of prejudice. (Chapman v. California (1967) 386 U.S. 18 (Chapman); People v. Watson (1956) 46 Cal.2d 818 (Watson).)
Under the Chapman standard, the beneficiary of the error must " ' "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ' " (People v. Pearson (2013) 56 Cal.4th 393, 463.) Under Watson, we ask whether it is reasonably probable that the defendant would have obtained a more favorable result had the complained-of-error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
Stevens was identified by four eyewitnesses who provided largely matching descriptions to police shortly after the incident and before they were asked to participate in identifying anyone. All the eyewitnesses described the person who punched Chris similarly: a man in a gray, long- sleeved, collarless shirt. Grant and Ian added that he was wearing a chain necklace. Chris, Ian, and Cooper all testified he had short hair. This consistent description matched what the defendant was wearing when he was apprehended, lending credence to the identifications. (See CALCRIM No. 315.)
Four of the eyewitness offered a specific reason for identifying Stevens as the man who punched Chris, making their testimony persuasive and believable. Grant explained he was standing there and saw Stevens do it. Zach explained he remembered Stevens because he had engaged in an individual conversation with Stevens and felt intimidated by Stevens after Stevens threatened to kill him. Ian said he remembered Stevens because Stevens had threatened him and so he had a clear visual. Finally, Cooper testified that he had specifically kept an eye on Stevens throughout the altercation because of Stevens's involvement. He added that he watched Stevens the longest and kept an eye on Stevens more than anybody else; Stevens was still fresh in his mind. These explanations establish how closely the witnesses paid attention and explain why they identified Stevens, suggesting their reliability.
Four of the eyewitnesses also articulated why they identified Stevens and not Abraham, who was wearing a collared gray shirt and vest, as the perpetrator. Grant testified that the person who punched Chris was not wearing a black vest or a hat. Zach explained that Abraham had a different face, wore a shirt with a collar and a vest, and was "[j]ust a different person." Ian testified that Abraham had a different body structure than the man who punched Chris, and Abraham also wore different clothing and had on a hat. Cooper noted that Abraham had a little goatee while the person who hit Chris had no facial hair; Abraham looked older than the person who hit Chris, and Abraham was wearing different attire. The witnesses' explanations for why Abraham was not the perpetrator were persuasive because they focused not only on clothing but also on other physical characteristics, like age, facial structure, and facial hair. This testimony showed how closely the witnesses paid attention and contrasted their descriptions of Stevens to Abraham. Even without testifying as to their respective levels of certainty, this testimony gave the impression that their identifications were truthful and accurate.
We are not persuaded by Stevens's argument that a deadlocked jury during the first trial is evidence that the second jury would not have found Stevens guilty absent the challenged factor. Both juries received the same version of CALCRIM No. 315, so comparing the trial outcomes to assess the impact of including the challenged factor is not helpful.
The consistency among the eyewitnesses' testimony, both in describing the sequence of events and the perpetrator, as well as their identification of Stevens as the perpetrator both close in time to the event and again at trial, supports the likely accuracy and truthfulness of the identifications. (See CALCRIM No. 315.) Given the cumulative impact of this testimony, even if the jury were not instructed that it could consider a witness's level of certainty, there is no reasonable doubt the jury would have returned a guilty verdict. (Chapman, supra, 386 U.S. at p. 24.) For the same reasons, it is not reasonably probable the outcome would be different. (Watson, supra, 46 Cal.2d at p. 836.) Thus, any error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. IRION, J.