Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR064832S
NEEDHAM, J.
Robert Canfield (Canfield) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of first degree burglary and first degree robbery (Pen. Code, §§ 459, 211). He contends: (1) his due process rights were violated when the court instructed the jury, in accordance with CALCRIM No. 315, that it could consider the victim’s subjective certainty in identifying Canfield as a factor in evaluating the reliability of the identification; (2) the evidence was insufficient to establish that Canfield was the perpetrator; and (3) the court erred in denying his motion for a new trial. His first argument has been repeatedly rejected by California appellate courts, and his other two arguments are meritless as well. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In October 2006, Canfield was charged with first degree burglary (Pen. Code, §§ 459, 460, subd. (a)), first degree robbery (§§ 211, 212.5), and petty theft with a prior theft conviction (§ 666). The information alleged a strike prior (§ 1170.12) and four prison priors (§ 667.5, subd. (b)).
Unless otherwise indicated, all statutory references are to the Penal Code.
Canfield entered a plea of not guilty and denied the special allegations. The third count for petty theft with a prior was dismissed upon the stipulation that a conviction for the lesser included offense of theft on count two would constitute a felony. The matter proceeded to a jury trial.
A. Prosecution’s Case
1. Victim Carlson’s Testimony
Around 8:00 p.m. on July 21, 2006, Michelle Carlson was in her upstairs apartment with her seven-year-old son. Carlson heard a knock on the front door. She looked through the peephole and saw a man wearing sunglasses. The knocks became louder, and after the man started banging on the door, Carlson shut an open window, closed the living room patio door, and told her son to be quiet. Thinking she heard the man leave, Carlson looked out the peephole again and saw he had moved to the bottom of the stairs.
Carlson went to her bedroom window to get a better view of him. As she started to lift up the blinds, she heard a quick knock on the door “and then [her] door was busted down.” The man (Canfield) fell into her apartment. He approached Carlson in her bedroom, holding his right hand under his left arm, as if he were hiding a weapon under his arm. Standing face to face from no more than two feet away, Canfield said, “Give me your fucking money.”
Carlson’s apartment was sufficiently bright to give her a clear view of the intruder. He was about six feet tall and was “missing his front teeth.” He wore blue jeans and a gray hooded sweatshirt, which covered his neck. He was Caucasian, appeared to be in his late 30s, had a buzzcut, and was no longer wearing sunglasses. Carlson realized he was a friend of the people who used to live in the downstairs apartment.
Canfield started rummaging through Carlson’s purses in her bedroom, repeatedly demanding money. As he did so, Carlson realized he was not holding a weapon. Canfield rifled through a wallet belonging to Carlson’s son, but it was empty. Although Carlson was scared, she became bolder and picked up one of her purses from the floor and shoved it into Canfield’s face, saying “Here is my fucking money.” He batted the purse away. Noticing Carlson’s wallet on the kitchen table, Canfield quickly walked towards it, as Carlson followed behind and her son screamed. Canfield grabbed the wallet, which contained around $53 or $56, credit cards, and identification cards, and paused for five or six seconds. Face-to-face from about a foot away, Carlson told Canfield, “You have my fucking money. Get the fuck out.” Canfield walked quickly towards the door, with Carlson behind. When he reached the door, he turned around, faced Carlson from about a foot away, and threatened, “If you fucking call the cops, bitch, I am going to fucking kill you.” Then he left.
Carlson stood at the top of the stairs and watched Canfield ride off on a bicycle. She yelled to her neighbor, Brad Hobbs, that she had been robbed and asked him to call the police.
When the police arrived, she gave them a full description of the intruder, including his missing teeth, and told the officers that she knew him as a friend of her former downstairs neighbor.
Carlson’s front door was dusted for fingerprints. No usable prints were found on the exterior side of the door. One usable print was found on the interior side, which Canfield never touched. The print was a possible match to the building handyman, who had recently installed the peephole in the door and whom Carlson confirmed was not the assailant.
At trial, the prosecutor asked to have Canfield show his teeth, so Carlson could identify him. The court sustained defense counsel’s objection. Without the benefit of seeing the condition of his teeth, Carlson identified Canfield as the intruder. The court allowed the prosecution to display a photograph of Canfield’s mouth, which was taken two days before. Carlson indicated that the photograph, which showed Canfield’s missing teeth, depicted the mouth of her assailant.
2. Hobbs’s Testimony
Hobbs was present when Carlson described the intruder to the police. Hearing that the intruder was missing his front teeth and used to visit Carlson’s downstairs neighbor, Hobbs told the officer that he had seen such a man around Carlson’s apartment complex “more times than [he] could count,” and the man was associated with a green truck. Hobbs did not see the man on the evening in question. Hobbs acknowledged that there are “other people in that general area that are missing their teeth.”
Hobbs testified that the man with missing teeth who was associated with the green truck was also covered with tattoos. He did not remember Carlson telling him or the police that the intruder was covered in tattoos.
At trial, Hobbs identified Canfield as the man he saw on numerous occasions with missing teeth and associated with the green truck near Carlson’s apartment building.
3. Police Investigation and Photo Identification of Canfield
Later in the evening of the incident, police showed Carlson a photographic lineup containing six individuals. Carlson told the officer that, although none of the individuals was the assailant, one of them was associated with the downstairs apartment.
Detective Curtis Honeycutt determined that the former downstairs neighbor was Jessica Pantaleo-Wansick. He contacted her, and she provided him information that led to a woman named Dalina Soverign Cardoza. After checking the police computer system, Detective Honeycutt learned that Cardoza was the registered owner of an older model Ford truck that matched Hobbs’s description of the vehicle associated with Carlson’s assailant. As Detective Honeycutt was leaving for Cardoza’s address, he observed the truck parked on the street. Based on the investigation that followed, he learned that Canfield was connected to Cardoza’s truck.
Detective Honeycutt prepared a photographic lineup that included a photograph of Canfield taken on July 22, 2006 (the day after the robbery), when he was booked on an unrelated matter. The detective also included photographs of other individuals who matched Canfield’s description, using the police computer system that generates lineups from booking photos. The booking photograph of Canfield did not show whether he was missing any teeth.
Detective Honeycutt showed Carlson the photographic lineup on August 1, 2006, after he read to her a standard admonishment. Carlson immediately selected Canfield’s photograph. She indicated that she was 95 percent sure he was the intruder, and she did not indicate a higher percentage only because the photograph did not show his teeth. After identifying Canfield, Carlson began to cry and shake and was “emotionally upset.”
4. Pantaleo-Wansick’s Identification of Canfield
Jessica Leah Pantaleo-Wansick testified that she had lived in the downstairs apartment with Cardoza’s brother, Raphael DiCaprio. Cardoza and her boyfriend, whom Pantaleo-Wansick identified in court as Canfield, visited the apartment. Pantaleo-Wansick recalled that Canfield did not have many teeth but had “a lot of tattoos.”
5. Cardoza’s Testimony
Cardoza testified that Canfield was her boyfriend and they stayed at the downstairs apartment “quite a bit.” After DiCaprio and Pantaleo-Wansick were evicted, Cardoza and Canfield stayed at motels, including McCullen’s Motel for a couple of weeks.
Cardoza offered an alibi for Canfield. On the evening of July 21, 2006, the date of the incident, Cardoza, Canfield, DiCaprio, and Canfield’s mother, Linda Waterman, were in the motel room celebrating Cardoza’s birthday, which was the next day. Beginning around seven in the evening on July 21, they watched a video and never left the motel.
6. Further Testimony of Detective Honeycutt
Detective Honeycutt was recalled as a witness; he testified that he interviewed Cardoza on August 1, 2006, and asked her if Canfield was with her around July 21, 2006. She responded, “most likely.”
B. Defense Evidence
The defense called two witnesses to support Canfield’s alibi, along with an expert witness to call into question the accuracy of Carlson’s identification of Canfield as her attacker.
1. DiCaprio’s Testimony
DiCaprio testified that he arrived at the motel where his sister Cardoza was staying around 4:30 on the afternoon of his sister’s birthday, with cake and ice cream. (His sister’s birthday was actually on July 22, not July 21, so based on this testimony DiCaprio did not provide an alibi for Canfield. However, DiCaprio claimed at trial that he did not remember his sister’s actual birthdate.) They watched videos. Canfield was in the motel room, and DiCaprio could not remember any time that evening when Canfield was not there. He acknowledged, however, that he (DiCaprio) drank quite a bit of alcohol that night and fell asleep, and his recollection was “hazy.”
2. Waterman’s Testimony
Canfield’s mother, Linda Waterman, confirmed that on July 21 she and the others were at McCullen’s Motel planning a birthday party for Cardoza the next day. She arrived around seven in the evening, after which she, Cardoza, DiCaprio and Canfield watched the movie Titanic. According to Waterman, her son Canfield never left the motel.
Waterman confirmed that Canfield was missing his front teeth at the time of the robbery. She also claimed he could not ride a bicycle because he had a “crooked spine.”
3. Defense Eyewitness Identification Expert
The defense called Geoffrey Loftus, an experimental psychologist, who had been qualified as an expert on perception and memory. Dr. Loftus acknowledged that he had only “[l]imited parts of the information” pertaining to the actual facts of this case.
Dr. Loftus testified that memory is based on fragments of information from an event, intermingled with fragments of information from other sources, including information obtained after the event. Memory changes over time, he explained, as people strip away information they sense is irrelevant or inconsistent, fill in gaps, or turn mere inferences into facts. As memory changes over time, it does not necessarily become more accurate. Furthermore, a person can have a memory that is subjectively strong and complete and confidently presented, but objectively inaccurate.
Dr. Loftus noted that memory initially forms based on what people pay attention to or focus on. “Weapon focus” refers to the fact that people tend to pay attention to a weapon when it is present, rather than other matters such as the assailant’s features. If a victim is concerned that the intruder may be holding a weapon, Dr. Loftus stated, the weapons focus would increase the likelihood of noticing any tattoos on the intruder’s hands. However, Dr. Loftus also acknowledged that if the victim were sure there was no weapon, “there would be no cause to look for a weapon anymore; and weapon focus would cease to be a factor.”
Dr. Loftus opined about the phenomenon of “unconscious transference,” whereby a witness might focus on a photograph in a lineup because she had seen that person in another setting, and choose that person even though he was not the attacker. On cross-examination, however, Dr. Loftus acknowledged that when a witness informs the police she has seen her attacker previously, there can be a conscious connection (recollection) of the person rather than an unconscious transfer.
Dr. Loftus explained that witnesses initially notice “global” features such as height, weight, gender, and color, and later observe features that are distinct or unusual. Tattoos can be an unusual feature. If a witness fails to mention that a person had a tattoo, it “probably means that the person they were looking at didn’t have the tattoo” (or at least that the witness did not see it). While eyewitnesses are good at quickly getting global information, detailed information takes longer to acquire.
By pre-arrangement with the court, Canfield displayed his tattoos to the jury during closing argument.
Dr. Loftus opined on the correlation between a witness’s certainty in her identification and its accuracy. If circumstances are poor for forming a strong memory initially, witness confidence does not correlate with accuracy. On the other hand, if the circumstances are good for forming a strong memory, a witness’s confidence in that memory is a good indicator of its accuracy. Good memory formation depends on the quality of the lighting, the time the witness had to observe the assailant, whether the witness was under a “huge amount of stress,” the attention paid by the witness to the assailant’s features, and the distance from the assailant. In addition, Dr. Loftus conceded, prior knowledge of the attacker allows the witness to have a better recollection, a better description, and an increased potential to identify the attacker accurately. Dr. Loftus also acknowledged that missing front teeth is an unusual feature, and Carlson’s prompt report of that unusual feature to the police made it likely the attacker was in fact missing front teeth. It also showed she must have spent some time looking at the assailant’s face. If a memory is strong and complete to begin with, Dr. Loftus added, it is not likely to be impacted by post-event information.
Dr. Loftus also testified to his opinions regarding photographic lineups. He opined a police officer may give subtle clues to a witness to pick a particular suspect from a lineup, unless a double-blind procedure is employed. In addition, a biased lineup can occur when one photograph stands out from the rest in a meaningful way, such that it draws attention to itself and the viewer focuses on it unconsciously. In Dr. Loftus’s view, in the six-photo lineup that included Canfield, Canfield’s head appeared to be slightly larger than all or possibly four of the other five individuals. In addition, Canfield was the only one except possibly one other not to have facial hair, and only Canfield appeared to Dr. Loftus to be looking angry in the photograph.
Detective Honeycutt, by contrast, testified that all the photographs in the photographic lineup, including Canfield’s, were standard booking photos taken from a set height and standard distance against a standard backdrop, and all photographs were the same size with the same margin to ensure uniformity.
C. Rebuttal Evidence
The court permitted the prosecution to play for the jury part of a recorded conversation between Canfield and his mother and another visitor while Canfield was in custody. In the conversation, Canfield asserted that he had not ridden a bicycle in 25 years, but he also stated that he knew how to ride a bicycle.
D. Verdict and Sentence
The jury found Canfield guilty on both counts. The court found the prior conviction allegations true.
Canfield filed a motion for a new trial on the grounds that the evidence was insufficient and there was newly discovered evidence, as we further discuss post. The court denied the motion.
The court sentenced Canfield to an aggregate term of 14 years in state prison. The court subsequently corrected the sentence to reflect a total prison term of 12 years.
This appeal followed.
II. DISCUSSION
Canfield contends: (1) the court’s instruction of the jury with CALCRIM No. 315 violated his due process rights to the extent the jury was told to consider an eyewitness’s subjective certainty as a factor in evaluating the accuracy of the eyewitness’s identification; (2) the evidence was insufficient to support a finding that Canfield was the perpetrator of the crimes; and (3) the court erred in denying his motion for a new trial. We address each contention in turn.
A. CALCRIM No. 315
CALCRIM No. 315 sets forth a number of factors for the jury to consider in evaluating eyewitness identification evidence. Defense counsel requested that CALCRIM No. 315 be read to the jury without modification, and he relied upon the instruction in his closing argument.
CALCRIM No. 315, as given in this case, was read 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, you may 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; [¶] 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 the identification; [¶] Are the witness and the defendant of different races; [¶] Were there any other circumstances affecting the witness’[s] ability to make an accurate identification; [¶] Was the witness able to identify the defendant in a photographic or physical lineup. [¶] 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.” (Italics added.)
From all these factors listed in the instruction, Canfield for the first time on appeal contends that the factor in CALCRIM No. 315 directing the jury to consider “[h]ow certain was the witness when he or she made the identification”lacks support in scientific studies and violates his due process rights.
1. Invited Error
As mentioned, Canfield specifically requested that the court give CALCRIM No. 315 by including it in his list of requested jury instructions. When the defense requests an eyewitness identification instruction and eyewitness testimony is a key element of the prosecution’s case and not substantially corroborated, the court must give the instruction. (People v. Wright (1988) 45 Ca1.3d 1126, 1143-1144 (Wright).) The court has no sua sponte obligation to modify or omit any of the factors listed in the instruction. (People v. Ward (2005) 36 Cal.4th 186, 213-214 (Ward).) With Canfield’s counsel making no objection to any portion of the instruction and requesting no modification, the court instructed the jury with CALCRIM No. 315, as requested. Furthermore, Canfield’s attorney used CALCRIM No. 315—including the certainty factor to which Canfield now objects—in his closing argument.
“ ‘The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a “conscious and deliberate tactical choice” to “request” the instruction.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 970.) Here, defense counsel’s request of CALCRIM No. 315 without modification was a conscious and deliberate tactical decision, which precludes review of his claim of error. (See People v. Hernandez (2003) 111 Cal.App.4th 582, 588 [“Preliminarily, we note that both the prosecutor and defense counsel requested [the instruction]. Thus, at least as to this instruction, defense counsel invited the claimed error”].)
Canfield complains he was in a difficult situation because he had to request an instruction and it was unlikely the court would accept any modification to a pattern instruction like CALCRIM No. 315, particularly since the California Supreme Court approved the instruction in Wright. The fact that there would have been no merit to Canfield’s proposed modification, however, does not absolve him from standing mute while the court charged the jury with the very instruction of which he now complains. Nor does the record demonstrate that the trial judge was so predisposed against any modification of CALCRIM jury instructions that it would have been futile for defense counsel to argue for a modification.
Whether by invited error, waiver, or forfeiture, Canfield’s challenge to CALCRIM No. 315 is barred.
2. Ineffective Assistance of Counsel
Canfield contends his trial counsel’s failure to request a modification or redaction of the certainty-factor was prejudicial ineffective assistance of counsel, because (1) it negated his defense and (2) it might have given rise to invited error. To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) counsel’s performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) prejudice flowing from counsel’s performance or lack thereof. (People v. Lucas (1995) 12 Cal.4th 415, 436.) We reverse convictions on the ground of inadequate counsel only if “the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581-582.)
As to negating his defense, Canfield argues that CALCRIM No. 315, with the factor that correlates an eyewitness’s subjective certainty with the accuracy of the identification, undermined his strategy to use expert testimony to impeach Carlson’s identification, given the subjective certainty of her identification. To the contrary, the inclusion of CALCRIM No. 315 in its entirety provided a basis for the jury to consider the testimony of Canfield’s expert witness on eyewitness identification, as well as a springboard for arguing that the factors set forth in the instruction as a whole tended to discredit Carlson’s identification. In addition, defense counsel used the factors set forth in CALCRIM No. 315 not only to attack Canfield’s identification, but also to bolster the credibility of defense witnesses. Canfield thus fails to affirmatively establish deficient conduct, lacking all rational tactical purpose, on the part of his counsel.
As to the issue of invited error, since we conclude that Canfield’s appeal lacks merit not only on the basis of invited error (ante), but also on the fact that CALCRIM No. 315 is not erroneous (post), no prejudice arose from counsel’s invitation of error. Caulfield’s ineffective assistance of counsel claim has no merit.
3. CALCRIM No. 315
Canfield urges that the part of CALCRIM No. 315 referring to the certainty of the witness’s identification is erroneous because it is “non-neutral and argumentative.” For two decades, our Supreme Court has disagreed, as do we.
In Wright, supra, 45 Cal.3d 1126, the defendant was convicted of an armed robbery and other offenses perpetrated by several masked men. The only evidence against him at trial was an eyewitness identification. The court considered whether the trial court erred in rejecting jury instructions requested by the defendant in regard to the accuracy of eyewitness identifications. (Id. at p. 1131.)
The court held that, on request, a defendant was entitled to an instruction “specifically directing the jury’s attention to other evidence in the record—e.g., facts developed on cross-examination of the eyewitnesses—that supports his defense of mistaken identification and could give rise to a reasonable doubt of his guilt.” (Wright, at p. 1141.) The court directed that “[t]he instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness.” (Id. at p. 1143.) The instruction should not evaluate the effect or influence of those factors. (Id. at pp. 1141, 1143.) The court thus approved instructing the jury with CALJIC No. 2.92, which contains the same factors as CALCRIM No. 315 (including the certainty factor), stating as follows: “CALJIC No. 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” (Wright, at p. 1144, italics added.)]
Canfield contends the certainty factor itself was not specifically before the court in Wright, so the court’s endorsement of CALJIC No. 2.92 was dictum with respect to the certainty factor. It is true that the only explicit mention of the certainty factor in Wright appears in the dissent, which challenged the majority’s view that an eyewitness instruction should merely list the relevant factors without explaining them. Among other things, the dissent pointed to the instruction’s failure to explain the certainty factor, asserting that a lay person’s correlation between a witness’s certainty and the accuracy of the identification was contrary to psychological research. (Wright, supra, 45 Cal.3d at p. 1159 [dis. opn. of Mosk, J].) In expressly rejecting the dissent’s view that the instruction should explain the effect of the listed factors, however, the majority necessarily considered the dissent’s concern about the certainty factor. (Id. at p. 1141.)
Furthermore, the majority in Wright observed that the “listing of factors to be considered by the jury will sufficiently bring to the jury’s attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate.” (Wright, supra, 45 Cal.3d at p. 1143.) That process certainly played out here, given Dr. Loftus’ testimony and the arguments of defense counsel.
But even if Wright left a door open for Canfield’s argument, our Supreme Court shut it 16 years ago in People v. Johnson (1992)3 Cal.4th 1183 (Johnson)—a case Canfield virtually ignores. In Johnson, the defendant contended the jury should not have been instructed with the certainty factor because, as here, “Dr. Loftus testified without contradiction that a witness’s confidence in an identification does not positively correlate with its accuracy.” (Id. at p. 1231.) The court rejected the argument: “We cannot agree with defendant’s contentions. First, as defendant concedes, the jury remained free to reject Dr. Loftus’s testimony although it was uncontradicted. [Citation.] . . . Second, the jury was instructed that it should consider ‘[t]estimony of any expert regarding acquisition, retention, or retrieval of information presented to the senses of an eyewitness.’ Thus, if the jury was persuaded by Dr. Loftus’s testimony, the instructions allowed it to infer that [the eye-witness’s] positive identification was not necessarily an accurate one.” (Id. at pp. 1231-1232.) Here too, the jury was free to consider Dr. Loftus’s testimony in applying the certainty factor of CALCRIM No. 315 to the evidence.
Our Supreme Court considered the certainty factor again in 2005 in Ward, supra, 36 Cal.4th 186, although respondent misstates its holding. In Ward, appellant contended that the certainty factor in CALJIC No. 2.92 should not have been given and the instruction should have been modified. The court rejected the argument because appellant had not raised the issue in the trial court, the trial court had no sua sponte obligation to modify the instruction, and any such error was in any event harmless under the circumstances of the case. (Ward, supra, 36 Cal.4th at pp. 213-214.)
In addition, this appellate district has twice rejected the arguments Canfield presents, in published opinions. In People v. Gaglione (1994) 26 Ca1.App.4th 1291 (Gaglione), disapproved on another ground, People v. Martinez (1995) 11 Cal.4th 434, 452, the defendant argued that CALJIC No. 2.92 was inadequate because the certainty factor led jurors to believe there was a correlation between a witness’s certainty in an identification and the accuracy of the identification, despite studies suggesting there was no such correlation. (Gaglione, at p. 1302.)The court in Gaglione found no error: “Defendant’s arguments were expressly rejected by the Supreme Court in [Wright], supra, 45 Cal.3d 1126. . . . The court expressly approved CALJIC No. 2.92, commenting that CALJIC No. 2.92, with appropriate modifications to take into account the evidence presented at trial, will usually provide sufficient guidance on eyewitness identification factors. [Citation.]” (Gaglione, at pp. 1302-1303.) Further, the court in Gaglione noted that “[t]he dissent in Wright raised concerns identical to those raised by defendant here,” but the majority in Wright “rejected the dissent’s contention that CALJIC No. 2.92 is defective.” (Gaglione, at p. 1303.)
Just last year, this appellate district in People v. Sullivan (2007) 151 Ca1.App.4th 524 (Sullivan) rejected yet another contention that CALJIC No. 2.92 violated the defendant’s rights on the ground asserted by Canfield. The court stated: “Defendant presents two objections to the jury instructions, the first of which is that the trial court erred by failing to delete sua sponte the reference to witness ‘certainty’ from the standard instruction (CALJIC No. 2.92) on the factors to be considered in ‘determining the weight to be given eyewitness testimony.’” (Sullivan, supra, at p. 561.) Sullivan complained that his expert opinion testimony discredited the certainty expressed by witnesses as a legitimate factor bearing on the accuracy of an identification, and that inclusion of the certainty factor in CALJIC No. 2.92 violated his “ ‘right to due process, because it reinforced a pervasive misconception and lightened the prosecution’s burden of proof.’” (Sullivan, supra, at p. 561.) The court stated: “For two reasons, we find no merit to defendant’s challenge to CALJIC No. 2.92 as given by the trial court. First, the trial court had no duty to either give or modify CALJIC No. 2.92 on its own motion. [Citations.]” (Sullivan, at p. 561.) Second, as stated in Gaglione, Wright precluded the defendant’s argument. (Sullivan, at p. 562.)
Although Johnson, Gaglione, and Sullivan were cited in the respondent’s brief, Canfield’s reply offers no basis for distinguishing this consistent and long-standing precedent that has rejected his arguments.
In any event, we too find Canfield’s arguments unpersuasive. He contends CALCRIM No. 315 is argumentative because it favors the prosecution by telling the jury to consider a witness’s subjective certainty as evidence of the reliability of his or her identification of the defendant. A witness’s certainty, however, is just one of several factors for the jury to consider. Furthermore, the instruction informs jurors to assess “how certain” the eye-witness was; it therefore applies where the eyewitness’s certainty was low as well as when the eyewitness’s certainty was high, and it does not favor the prosecution.
Canfield contends the instruction lowered the prosecution’s burden of proof and thus violated his due process rights, because it created an impermissible presumption or allowed the jury to draw an irrational inference. However, CALCRIM No. 315 merely directs the jury to “consider the following questions” in its evaluation of the eyewitness testimony, leaving it to the trier of fact to weigh the specified considerations in light of the evidence. Besides, CALCRIM No. 315 reminds the jury of the prosecution’s burden to prove identity beyond a reasonable doubt. CALCRIM No. 315 does not lower the People’s burden of proof.
Citing to psychological studies suggesting a weak correlation between an eyewitness’s certainty in his or her identification and the accuracy of the identification, Canfield urges that his due process rights were violated because the equation of certainty and accuracy is wrong. As acknowledged by Dr. Loftus himself, however, the correlation between certainty and accuracy depends on the circumstances of the identification. Nothing in CALCRIM No. 315 precluded the jury from considering the expert witness testimony that the court admitted in the matter before us. (See Wright, supra, 45 Ca1.3d at p. 1143; Johnson, supra, 3 Ca1.4th at p. 1232.)
Canfield further notes that a few other states have removed the certainty factor from an instruction akin to CALCRIM No. 315. We are not obliged to follow the law of other states. Moreover, the fact that only these few states have chosen to so act confirms we should not eschew the long-standing precedent and careful analysis of our own high court or ignore the conclusions of other panels in this appellate district.
Canfield’s challenge to the certainty factor of CALCRIM No. 315 has no merit.
B. Sufficiency of the Evidence of Identity
Canfield contends there was insufficient evidence that he was the perpetrator of the crimes against Carlson. He claims that “Carlson’s subjective certainty was the cornerstone of unreliability,” she failed to note Canfield’s tattoos, and the police used suggestive lineup procedures.
The relevant question is whether the record discloses “evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314.)
Carlson identified Canfield as the perpetrator in the photographic lineup and in court, and she was certain of her identification. Given the circumstances of the robbery, there was a reasonable basis for the jury to decide there was a correlation between her certainty and the accuracy of her identification. Dr. Loftus himself suggested that such a correlation may exist where conditions for a strong accurate identification were present at the time of the robbery. Here, Carlson was close to her assailant throughout the robbery—at times just one to two feet away; the lighting was good; she had time to view the assailant and looked directly into his face; she focused on her attacker’s face once she knew he was not holding a weapon; and her actions did not reflect overwhelming stress.
Furthermore, other evidence supported the conclusion that Carlson’s identification was accurate. Consistent with the views of Dr. Loftus, Carlson’s prior experience with Canfield facilitated an accurate identification. Her recognition of Canfield was further supported by the distinctive feature that he was missing his front teeth, which she immediately reported to the police. As Dr. Loftus acknowledged, a victim’s prompt reporting of an unusual feature makes it very likely the attacker in fact possessed that feature. And, as confirmed by Canfield’s mother, his girlfriend’s brother, and Pantaleo-Wansick, Canfield was indeed missing front teeth at the time of the robbery. Lastly, the fact that Carlson identified Canfield in court and selected Canfield’s photograph from the photographic lineup based on his face, when his missing teeth were not visible—together with the fact that Canfield had missing teeth just as Carlson testified about the intruder—provides substantial if not overwhelming identification evidence.
In terms of the factors the jury was to consider under CALCRIM No. 315, there was substantial evidence for the jury to find as follows: Did the witness know or have contact with the defendant before the event? Yes. How well could the witness see the perpetrator? Well. What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation . . . .? She observed him from one to two feet away in a well-lit apartment. How closely was the witness paying attention? She looked directly into his face. Was the witness under stress when he or she made the observation? Yes, although she was composed enough to follow and confront the assailant. Did the witness give a description and how does that description compare to the defendant? She promptly gave a description that matched Canfield. How much time passed between the event and the time when the witness identified the defendant? About 11 days until the photographic lineup. Was the witness asked to pick the perpetrator out of a group? Yes. Did the witness ever fail to identify the defendant? No. Did the witness ever change his or her mind about the identification? No. How certain was the witness when he or she made the identification? 95%. Are the witness and the defendant of different races? No. Was the witness able to identify the defendant in a photographic or physical lineup? Yes. Were there any other circumstances affecting the witness's ability to make an accurate identification? His missing front teeth.
C. New Trial Motion
Canfield sought a new trial on the grounds the evidence was insufficient to support the verdict and there was newly discovered evidence concerning Canfield’s missing teeth. (§ 1181, subds. (6), (8).) The trial court denied the motion on the grounds that the evidence at trial was sufficient and there was no reasonable probability the new evidence would have resulted in a different outcome.
We, like the parties, discuss the sufficiency of the evidence in a separate section. Although Canfield contends that the standard of review applicable to a new trial motion is not the same as the substantial evidence standard, the trial court did not err in denying a new trial on the grounds of insufficient evidence.
1. Background
In his new trial motion, Canfield claimed there was new evidence that he had fewer teeth missing when the crime was committed than when the photograph, which Carlson identified at trial, was taken. At the time of the robbery in July 2006, Canfield was missing only his two front upper teeth. In August 2006, while he was in custody awaiting trial on the offense, he had two additional upper teeth extracted—the two upper teeth to the left of and immediately next to the two teeth already missing. In March 2007, just before trial, a photograph was taken of Canfield’s mouth showing his missing teeth. It was this photograph that was shown to Carlson at trial, and which Carlson identified as depicting her assailant’s mouth. Defense counsel claimed he was unaware, during the trial, that Canfield had two additional teeth removed after the crime but before the photograph of his mouth was taken. Thus, he asserted, the evidence of Canfield’s additional missing teeth was newly discovered.
To obtain a new trial, the defendant must show: (1) the evidence, and not merely its materiality, was newly discovered; (2) the evidence was not merely cumulative; (3) the evidence would probably render a different result upon retrial; (4) the defendant could not with reasonable diligence have discovered and produced the evidence at trial; and (5) the facts are shown by the best evidence under the circumstances. (People v. Delgado (1993) 5 Cal.4th 312, 328.) We review the trial court’s denial of a new trial motion for an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 365.)
2. No Abuse of Discretion
The court did not abuse its discretion in concluding there was no reasonable probability that the evidence, if presented to the jury, would have changed the outcome of the proceedings. As the court observed, Carlson knew Canfield and identified him from a photographic lineup and in court before seeing the photograph depicting two additional missing teeth. Furthermore, there was no dispute that Canfield was missing front teeth at the time of the offense; whether he was missing two or four teeth at the time of the robbery does not discredit Carlson’s testimony or the significance of that unusual condition.
At any rate, Canfield’s motion was meritless given the requirement that the evidence must be newly discovered. Certainly Canfield knew before trial that his own teeth had been extracted in August 2006, after the robbery and before the photograph was taken. Indeed, defense counsel found out about the matter from Canfield. Evidence within the defendant’s knowledge at the time of trial is not “newly discovered” and cannot serve as the basis for a new trial motion, even if the defendant did not bring the evidence to his attorney’s attention. (People v. Greenwood (1957) 47 Ca1.2d 819, 822.)
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., DONDERO, J.
Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.