Opinion
C090775
07-08-2020
THE PEOPLE, Plaintiff and Respondent, v. RYAN STEPHEN GIER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. LOD-CR-FE-2019-0006624)
A jury found defendant Ryan Stephen Gier guilty of a single count of burglary based, in part, on the testimony of witnesses who identified him in a video recording. Defendant contends that the trial court violated his due process rights when it instructed the jury using CALCRIM No. 315, which permits jurors to consider a witness's degree of certainty when evaluating eyewitness identification testimony. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, an elderly woman, hired defendant to do yard work at her home over the course of approximately one year. During that year, defendant would work on her one-acre property approximately two or three times a week for about six hours at a time. The victim often spoke with defendant when he worked at her house, and she came to know him. She was familiar with his voice, manner of walking, physical build, posture, height, and body language.
Several months after defendant had stopped working for her, the victim left her home to go to breakfast and church. When she returned, she noticed that a bedroom window had been broken, drawers and cupboards had been opened, and several pieces of jewelry were missing. The victim estimated that approximately $3,000 worth of jewelry had been taken. The jewelry was never recovered.
At trial, the identification of defendant was a key issue. Before the burglary, the victim had installed a doorbell camera on the door to her laundry room. On the morning in question, the camera captured a short clip of two men walking past the camera. One man was wearing dark clothing and carrying a dark bag, which he held up against the side of his head, blocking the camera's view of his face. The clip also captured the man answering a phone call and speaking briefly. The victim testified that she watched the video on the day of the burglary and identified the man in dark clothing holding the dark bag as defendant. She explained that she could identify him because of his voice, as well as his build and the way that he walked, and was certain of her identification.
Two of the victim's neighbors also identified defendant. The first neighbor, J.G., testified that he saw defendant working at the victim's home once or twice a week. He spoke with the defendant in passing on some occasions and stated that he was familiar with defendant's voice, height, build, posture, and gait. On the day of the burglary, he helped the victim retrieve the doorbell camera video and hooked up a Bluetooth speaker so they could hear the audio on the video more clearly. J.G. identified the man in dark clothing as defendant "right away" based on his voice, "the way he walked, carried himself, the posture, [and] the body build."
The victim's second neighbor, P.L., testified that she would see defendant on the victim's property three or four times per week. When she saw him, she would greet him and they would exchange pleasantries. On the morning of the burglary, she and her husband went over to the victim's house to help her board up the broken window. She also watched the doorbell camera video on J.G.'s phone. She testified that the she could "immediately tell" the man in the dark clothing was defendant because of his "hoody and the slouching." She also recognized his voice and testified that she had "no question" that it was defendant in the video.
The trial court instructed the jury with jury instruction CALCRIM No. 315, which reads in relevant part: "In evaluating identification testimony, consider the following question[s]: [¶] . . . [¶] How certain was the witness when he or she made an identification?" Defense counsel did not object to any portion of this instruction. After deliberating, the jury found defendant guilty of one count of burglary. (Pen. Code, § 459.)
DISCUSSION
Defendant argues the trial court committed instructional error when it instructed the jury to consider the witnesses' degree of certainty to evaluate their testimony. Defendant asserts the instruction unduly influenced the jury to believe the witnesses, despite scientific research demonstrating no correlation between eyewitness certainty and accuracy. Thus, he claims, the instruction violated his rights to due process and a fair trial.
The People respond that defendant forfeited his claim because defense counsel did not object to the jury instruction. Anticipating this argument, defendant argues that any objection would have been futile or, alternatively, that his trial counsel provided ineffective assistance of counsel by failing to object. We agree that any objection would have been futile, but disagree that the trial court erred when it used the model jury instruction.
At the time of defendant's trial, our Supreme Court had twice upheld the inclusion of the certainty language in the standard instruction. (People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez); People v. Johnson (1992) 3 Cal.4th 1183 (Johnson).) In Johnson, the court considered a challenge to CALJIC No. 2.92, the precursor to CALCRIM No. 315, which instructed jurors to weigh witness identification testimony using a list of factors, including "[t]he extent to which the witness was either certain or uncertain of the identification." (Johnson, at p. 1230, fn. 12.) The defendant in Johnson argued that the trial court erred in permitting the jury to consider the certainty of a witness's identification because an expert had testified, without contradiction, that "confidence in an identification does not positively correlate with its accuracy." (Id. at p. 1231.) The Supreme Court disagreed and found no error. (Id. at p. 1232; see also People v. Wright (1988) 45 Cal.3d 1126, 1138-1144 [upholding CALJIC No. 2.92].)
In Sánchez, another case involving CALJIC No. 2.92, the jury had been instructed to consider a witness's certainty in making an identification. (Sánchez, supra, 63 Cal.4th at p. 461.) On appeal, the defendant cited "scientific studies that conclude there is, at best, a weak correlation between witness certainty and accuracy," and argued "the court erred in instructing the jury it could consider the certainty factor." (Ibid.) The Supreme Court concluded the defendant forfeited the claim by failing to request modification of the instruction. (Id. at p. 461.) But the court proceeded to the merits, concluding that it was not error for the trial court to give the instruction and that defendant suffered no prejudice from it. (Id. at p. 462.) The court noted that studies suggesting a weak correlation between witness certainty and accuracy were "nothing new." (Ibid.) Despite such studies, the court had "specifically approved CALJIC No. 2.92, including its certainty factor." (Sánchez, at p. 462.) The court declined to reconsider the propriety of its previous holdings. (Ibid.)
Defense counsel's failure to object was not ineffective assistance given that any objection would have been futile under existing law. (People v. Welch (1993) 5 Cal.4th 228, 237 ["Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence"].) The same law compels us to reject defendant's claim on the merits.
" 'The propriety of jury instructions is a question of law that we review de novo. [Citation.]' [Citations.]" (Yale v. Bowne (2017) 9 Cal.App.5th 649, 657.) --------
The witness certainty issue is currently pending before our Supreme Court in People v. Lemcke (June 21, 2018, G054241) [nonpub. opn.], review granted October 10, 2018, S250108. Unless and until the Supreme Court overrules its prior precedent, Sánchez remains good law and we are bound by its holding that it is not error to include the certainty factor in the instruction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, we find no error in the trial court's instruction.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: HULL, Acting P. J. DUARTE, J.