Opinion
D071380
11-06-2017
THE PEOPLE, Plaintiff and Respondent, v. MARIO HERNANDEZ GUERRERO, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS283686) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mario Hernandez Guerrero of attempted robbery while personally using a deadly or dangerous weapon. (Pen. Code, §§ 211, 664, 12022, subd. (b)(1).) Subsequently, Guerrero admitted three prison priors (§ 667.5, subd. (b)) and a serious felony and strike prior (§§ 667, subds. (a)(1) & (b)-(i), 668 & 1170.12, subd. (b)). The court sentenced Guerrero to 11 years in state prison.
Undesignated statutory references are to the Penal Code.
Guerrero contends the court erred by instructing the jury with the standard version of CALCRIM No. 315, which states that an eyewitness's level of certainty is a factor to be considered in evaluating identification testimony. He concedes his argument "has been rejected by California cases," but Guerrero contends those cases are based on a "flawed analysis" and should be "reconsidered to bring California into line with the findings of applicable empirical studies . . . ."
We affirm because the California Supreme Court recently rejected the same argument in People v. Sanchez (2016) 63 Cal.4th 411, 461-462 (Sanchez).
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's Case
On December 7, 2015, Omid, a hotel manager, was working behind the front desk of the Travelodge hotel in San Ysidro. At about 6:40 p.m. he noticed two men standing outside, to the left of the hotel's front entrance. The men were standing behind a column that was a blind spot, but Omid watched them through a surveillance camera. One of the men wore a fluffy jacket zipped all the way up, which aroused Omid's suspicion because it was not cold that evening.
To protect the privacy of the victim and witness, we refer to him by only his first name. (Cal. Rules of Court, rule 8.90.)
When no customers were in the hotel lobby, the man wearing the fluffy jacket rapidly came inside and said, "Pop it up." Omid did not understand what that meant. Becoming angry, the man pulled a gun half way out of his waistband and repeated, "Pop it up." Frightened for his life, Omid told the man he could take whatever he wanted, but the hotel did not keep cash; Omid pointed to a sign that stated no cash was accepted.
The man put the gun back in his waistband, clenched his fists, and started looking over the counter, being careful not to touch his hands on the surface. The man became more angry and kept repeating that Omid was upsetting him.
A customer then entered the lobby. The gunman backed up and left the building. Omid locked the door and called 911.
At trial, Omid identified Guerrero as the gunman who demanded money. Omid also identified Guerrero's codefendant, Alejandro Morales, as the person he saw with Guerrero before the attempted robbery, the lookout man.
The jury also convicted Morales of attempted robbery on an aiding and abetting theory. Morales is not a party to this appeal and, therefore, we do not discuss the evidence of his involvement in any detail.
The entire incident was recorded on the hotel's security cameras, including a camera located in the lobby that recorded Guerrero at the front desk, pulling the gun out of his waistband, and an outside camera that recorded Guerrero and Morales, both before the attempted robbery, and afterwards fleeing on foot. Excerpts of the videos were played for the jury.
At about 6:50 p.m., San Diego Police Officer Marco Calderilla arrived at the hotel in response to Omid's 911 call. After interviewing Omid, Officer Calderilla watched the surveillance videos and broadcast suspect descriptions on the police radio.
At about 7:30 p.m., San Diego Police Detective Mark Haas arrived at the hotel and interviewed Omid. Using still photographs of the two suspects obtained from the surveillance video, Detective Haas prepared a "be on the lookout" flyer for patrol officers.
The next day, Officer David Kean saw the flyer and recognized the photograph of Morales, who he had seen in the area of the Travelodge within the past few weeks. Officer Kean also recognized Guerrero's photograph as someone who had been with Morales one or two times in the same area over the past few weeks. Officer Kean had seen Guerrero before and recognized him, although he was not able "to come up with his name immediately."
Officer Kean contacted Morales later that day, about one-quarter mile from the Travelodge. Morales was wearing clothing similar to those worn by the lookout in the surveillance video. Later the same day, police searched Morales's home and found a jacket and hat matching those worn by the suspect in the still photographs taken from the surveillance video.
Police never recovered the gun or the clothes Guerrero was wearing during the crime.
On December 9, 2015—two days after the attempted robbery—Detective Haas prepared a photographic lineup to show Omid. Detective Haas, who has been a detective for 28 years, picked the filler, or nonsuspect photographs, which were all similar in appearance to the photograph of Guerrero. The detective shuffled the six photographs so that even he did not know what order they were in. He did not number the photographs because "even a number on it sometimes might be suggestive."
That same day, December 9, 2015, Detective Haas met with Omid to show him the photographic lineup. Before showing Omid any of the photographs, Detective Haas read to Omid an admonishment stating:
"You will be asked to look at a group of photographs. The fact that the photographs are shown to you should not influence your judgement. You should not conclude or guess that the photographs contain the picture of the person who committed the crime. You are not under any obligation to identify anyone. It is just as important to free innocent persons from suspicion as it is to identify guilty persons. Do not be influenced by the fact that the persons in the photographs may have beards, mustaches, or long hair. Do not be influenced by the fact that some of the pictures may have different background color or lighting. Please do not discuss the case with other witnesses nor indicate in any way that you have or have not identified someone."
After reading the admonishment aloud, Detective Haas gave Omid the paper to read it himself. Detective Haas testified he wanted to "make sure [Omid] knew that he did not have to identify somebody." Before showing Omid the photographs, the detective did not tell Omid that anyone was in custody.
Detective Haas showed Omid each photograph separately. The detective held each photograph while Omid looked at it, and when Omid said "no," Detective Haas put that photograph to one side, face down on a counter, and then showed Omid the next one.
While going through the photographs, Omid hesitated on one of them and said he was not sure. Detective Haas placed this photograph face down separate from the ones Omid had already rejected, so that after Omid had seen all the photographs, he could look at that one again.
When Detective Haas then came to Guerrero's photograph, Omid said, "That's him." At trial, Omid testified he was "100 percent sure" of his photo identification.
After finishing the remaining photographs, Detective Haas then showed Omid the one he had said he was unsure about. Omid said, "No, that wasn't him," and repeated that the person who tried to rob him was shown in the photograph of Guerrero.
Detective Haas did not mark the photograph that Omid initially said he was not sure about. He testified this was because "we went back to the photo and he—after looking at it a second time, he said that was not him and he referred back to Mr. Guerrero and said that was him." On cross-examination, Detective Haas acknowledged, "I probably should have marked it. And I realize something like this, it could have been [sic] helped out. But at that time, [Omid] was sure it wasn't him. So he negated it and went right back to Mr. Guerrero and said that was him."
B. The Defense Case
Neither Guerrero nor Morales testified. On cross-examination, Omid acknowledged that in his 911 call, he described the gunman as having tattoos on his face, near the right eye. When asked to look at Guerrero in the courtroom, Omid agreed that Guerrero had no tattoos on his face, and Omid also acknowledged that when he identified Guerrero in the photo lineup, he did not have any tattoos. Asked, "[W]hat was it that made you think when you called 911 that he may have had some tattoos?", Omid initially testified it may have been a shadow caused by the cap Guerrero was wearing and a mole on his face, but later Omid testified, "I have no answer for it."
During deliberations, the jury asked the court for the transcript of the 911 call. However, counsel used that transcript only to refresh Omid's recollection; it was not offered into evidence. The recording of the 911 call, although identified as an exhibit, was never played at trial. Accordingly, the court answered the jury's question, stating, "The 911 transcript is not in evidence and cannot be provided to the jury."
In closing argument, Guerrero's lawyer emphasized that "28 seconds was the entire amount of time that the suspect" who attempted to rob Omid was in the lobby and in Omid's sight. She repeatedly commented on Omid's initial description of the suspect as having facial tattoos, noting that Guerrero, who is "here sitting in court. . . . [Y]ou can obviously observe for yourself. . . . [H]e doesn't have tattoos at all on his face." Counsel characterized the surveillance video as being "grainy" and "pixilated," commenting, "I can't even tell [w]hat it does show." Counsel noted the absence of any physical evidence linking Guerrero to the crime: There was no DNA or fingerprint evidence, even though the video shows the gunman touching the lobby door when exiting. Nor was the gun or gunman's clothing found. She also criticized the photo lineup because it was not conducted in a double-blind manner; Detective Haas knew Guerrero was a suspect when he showed Omid the photographs. Calling the jury's attention to CALCRIM No. 315, which identifies several factors for the jury to consider in evaluating eyewitness testimony, counsel asserted Omid was under great stress during the crime, and made a cross-racial identification (Omid is of Middle Eastern descent; Guerrero is Hispanic). In sum, counsel asserted, "It's the People's burden to prove beyond a reasonable doubt that Mr. Guerrero was the suspect and they haven't done that in this case."
C. Verdict and Sentencing
After about three hours of deliberations, the jury returned a guilty verdict against both Guerrero and Morales for attempted robbery. The jury also found that Guerrero personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1). In later proceedings, Guerrero waived his right to a jury trial and admitted three prison priors, a serious and violent felony prior, and a strike prior.
The court sentenced Guerrero to an 11-year prison term. Apart from challenging the conviction, Guerrero does not contend the sentence is erroneous.
DISCUSSION
I. THE COURT PROPERLY INSTRUCTED ON WITNESS IDENTIFICATION
A. Guerrero's Contention
The court gave CALCRIM No. 315, the standard instruction regarding how the jury should consider eyewitness identification evidence. It states that in evaluating identification testimony the jury should consider several questions, including, "How certain was the witness when he made an identification?" At trial, Guerrero did not object to this instruction or request that it be modified.
On appeal, Guerrero contends that it is "impermissible to instruct a jury that it may take into consideration the level of certainty of an eyewitness's identification of the defendant" because (1) studies suggest that an eyewitness's level of certainty is not a reliable indicator of the accuracy of the identification; and (2) "[d]espite these empirically-established facts, witness confidence is the single most influential factor in a juror's determination of whether an identification is accurate."
In making this argument, Guerrero fails to note that there was no expert testimony on this issue at trial, no such studies were before the trial court, and none are in the record.
Guerrero acknowledges that despite such studies, consideration of an eyewitness's level of certainty has been accepted by the United States Supreme Court (Neil v. Biggers (1972) 409 U.S. 188, 199-200) and by the California Supreme Court in People v. Ward (2005) 36 Cal.4th 186, 213-214 (Ward), and Sanchez, supra, 63 Cal.4th 411, 462.
Nonetheless, relying on several out-of-state cases, Guerrero contends "[t]he national trend is to recognize that a witness's certainty or confidence in his or her identification is not an accurate or relevant consideration, and that the jury must be instructed in a way that does not suggest that it can consider this factor."
B. Sanchez
The California Supreme Court's recent decision in Sanchez, supra, 63 Cal.4th 411 disposes of Guerrero's contention. There, the trial court gave CALJIC No. 2.92 (the CALJIC equivalent of CALCRIM No. 315), which instructed that one of the factors that the jury should consider in judging the accuracy of eyewitness testimony was "'the extent to which the witness is either certain or uncertain of the identification.'" (Sanchez, supra, 63 Cal.4th at p. 461.) The defendant contended that the trial court erred in not modifying the instruction to delete that factor. The Supreme Court rejected the contention.
The court in Sanchez, supra, 63 Cal.4th 411 first held that the claim was forfeited because the defendant made no request in the trial court to modify the instruction. "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." (Id. at p. 461.)
Second, the court in Sanchez, supra, 63 Cal.4th 411 found no error, stating, "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. [Citation.] In People v. Wright (1988) 45 Cal.3d 1126, 1141, we held 'that a proper instruction on eyewitness identification factors should focus the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.' We specifically approved CALJIC No. 2.92, including its certainty factor. [Citation.] We have since reiterated the propriety of including this factor. [Citation.] [¶] Defendant correctly notes that some courts [in other states] have disapproved instructing on the certainty factor in light of the scientific studies. [Citations.] But, in a case like this involving uncertain as well as certain identifications, it is not clear that even those cases would prohibit telling the jury it may consider this factor. . . . Any reexamination of our previous holdings in light of developments in other jurisdictions should await a case involving only certain identifications." (Sanchez, supra, 63 Cal.4th at p. 462.)
C. Forfeiture
Here, as in Sanchez, supra, 63 Cal.4th 411, there was no request to modify the eyewitness identification instruction to delete or elaborate on the certainty factor. Therefore, Guerrero's claim of instructional error is forfeited. (Id. at p. 461.)
Guerrero essentially concedes such forfeiture, stating, "Appellant appreciates that this court may view itself as being unable to accept his argument that he has not forfeited the issue by failing to request modification of CALCRIM No. 315 in the trial court. Two [California] Supreme Court cases have found forfeiture, and this court is required to follow the law as stated by the Supreme Court."
Guerrero also contends, however, that the Supreme Court's forfeiture analysis is based on "incorrect reasoning that conflicts with two principles of law stated in other Supreme Court cases . . . ." We decline Guerrero's invitation to second-guess the California Supreme Court. In Sanchez, supra, 63 Cal.4th 411, the Court unequivocally held the same instructional error argument Guerrero makes here was forfeited by failing to request the standard instruction be modified, stating, "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." (Id. at p. 461.) As an intermediate appellate court, we are bound to follow the Supreme Court's holding in Sanchez. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
D. Merits
Even if Guerrero had not forfeited his claim of instructional error, we would be compelled to affirm. Inclusion of the certainty factor has been upheld by a line of California Supreme Court authority. (Ward, supra, 36 Cal.4th at pp. 213-214; People v. Arias (1996) 13 Cal.4th 92, 168; Sanchez, supra, 63 Cal.4th at p. 461.)
Sanchez, supra, 63 Cal.4th 411 involved several identifications, some certain and some uncertain. (Id. at p. 462.) The court in Sanchez noted that under those circumstances, the defendant would "surely want the jury to consider how uncertain some of the identifications were," as the challenged instruction states. (Ibid.) The court stated that in such a case, even the out-of-state authorities that have disapproved instructing on the certainty factor might not prohibit telling the jury it may consider this factor. (Ibid.) The court added, "Any reexamination of our previous holdings in light of developments in other jurisdictions should await a case involving only certain identifications." (Ibid.)
Here, there is only one photographic identification—Omid testified he was "100 percent sure" of his identification of Guerrero. Guerrero contends this case, therefore, is the type of case the California Supreme Court is awaiting. However, whatever reexamination might be necessary, we are required to leave to the California Supreme Court, as we are bound by Sanchez, supra, 63 Cal.4th at pages 461-462.
Because Guerrero forfeited the instructional error issue, and in any event there is no error under Sanchez, supra, 63 Cal.4th 411, it is unnecessary to consider his assertion that the claimed error violates the United States Constitution and is prejudicial under the standard in Chapman v. California (1967) 386 U.S. 18. --------
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.