Opinion
B293017
10-29-2021
THE PEOPLE, Plaintiff and Respondent, v. EDGAR GUZMAN, Defendant and Appellant.
David Zarmi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA465263 David V. Herriford, Judge. Affirmed and remanded with directions.
David Zarmi, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
EGERTON, J.
A jury convicted defendant and appellant Edgar Guzman of robbing ninth grader Byron E. On appeal, Guzman argues (1) the trial court's jury instruction on eyewitness identification, CALCRIM No. 315, violated his constitutional rights by including a "certainty" factor; (2) we should remand the case for the court to exercise its discretion under Senate Bill No. 1393 (Senate Bill 1393) to strike his five-year serious felony prior; and (3) the imposition of a restitution fine and court fees violated his due process rights.
We initially rejected Guzman's challenge to the "certainty" factor in CALCRIM No. 315. We noted that, in People v. Sánchez (2016) 63 Cal.4th 411, 461-463, our Supreme Court had upheld the inclusion of the certainty factor in the jury instruction on eyewitness identification. We also noted the high court had granted review in People v. Lemcke (June 21, 2018, G054241) (nonpub. opn.), review granted October 10, 2018, S250108, to consider whether including the certainty language in the instruction violates a defendant's due process rights. We said, "Until and unless the Court decides otherwise, we continue to follow and apply its well-reasoned and long-standing precedent."
After we filed our opinion, the Supreme Court decided People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke). The Court concluded the certainty instruction does not violate due process, but "acknowledged the current version of the instruction might confuse jurors about the relationship between confidence and accuracy" of an identification. (Id. at pp. 661, 666.) Our high court then transferred the matter back to this court with directions to vacate our initial opinion and reconsider the case in light of Lemcke. The Attorney General filed a supplemental brief (see Cal. Rules of Court, rule 8.200(b)(1)) but Guzman did not. Having reconsidered the case with our high court's guidance in Lemcke, we conclude Guzman's due process rights were not violated. Nor was he prejudiced by the instruction in any event. We therefore affirm his conviction.
The Attorney General agrees remand is appropriate so the court can exercise its discretion under Senate Bill 1393. We reject Guzman's contention about the restitution fine and court fees.
FACTS AND PROCEDURAL BACKGROUND
1. Guzman robs the teenage victim
On February 2, 2018, around 8:00 p.m., ninth grader Byron E. and his friend Jose R. stopped at a store to buy some sodas and chips, planning to take the bus home. Byron and Jose saw Guzman urinating in a bush. Guzman got into a gray Infiniti, the car "came around again," and Guzman got out of the passenger seat and asked the boys "if [they] were in a gang and where [they] were going and where [they] lived."
Guzman was within five or six feet of Byron-maybe as close as an arm's length. Guzman had his hand underneath his shirt; Byron and Jose thought he might have a knife or a gun and "he was going to do something to [them]," "cut [them] or hurt [them]." Guzman demanded money. Guzman took his hand out of his shirt, grabbed Byron's red portable JBL Bluetooth speaker, ran back to the gray car, and left.
A Hispanic woman was driving the gray car. She was wearing a blue shirt and blue jeans.
Byron called the police. The boys gave the police a description of the perpetrator and the car. Byron told police the robber was wearing a red polo shirt with white lines, jeans, and a cap. Byron said the perpetrator had a tattoo in the middle of his neck, under his chin on his throat.
A responding officer later testified at trial that-as he looked at Guzman in court-he did not see a tattoo "precisely on his throat" "in the middle of his neck." Guzman did have a tattoo on the right side of his neck, "underneath his throat." There also were conflicts in the trial testimony about whether Byron had told the police the perpetrator had tattoos on his arms as well. The responding officer testified at trial-after observing Guzman who, with the court's permission, approached the witness box- that Guzman had tattoos of a teardrop or an "H" on his face near his eye and a tattoo of "H-P-S" on his chin. Guzman also had tattoos on both hands and "multiple tattoos on his right forearm."
The officers who had taken the report from the boys started driving around the area. Eventually they saw an older model gray or silver Infiniti driving westbound. They followed the car. It turned suddenly into an apartment complex and parked in a small carport. A Hispanic woman wearing a blue shirt and blue jeans got out of the driver's side. A man later identified as Guzman got out of the passenger side. He was wearing a red polo shirt with white stripes and blue jeans; he had tattoos on his neck.
Another officer found a red portable JBL Bluetooth speaker in the front passenger seat of the Infiniti.
Later that night, officers took Byron and Jose-in two separate cars-to look at Guzman, the woman in the blue shirt, and a third person who had been in the car when police followed it. The police told Byron the "person might be the person or it might not be the person" and he "would have to be the one to tell." Byron and Jose identified the man-Guzman-as the person who had taken Byron's speaker. Guzman was still wearing the same red and white striped shirt. Jose also identified the woman in the blue shirt as the driver. Officers gave Byron's speaker back to him.
2. The charges, trial, verdict, and sentence
The People charged Guzman with robbery in violation of Penal Code section 211. The People alleged Guzman had suffered a prior strike for assault with a firearm, with a gang enhancement. The case proceeded to trial in August 2018. Guzman chose not to testify. The jury convicted him. At the conclusion of a court trial, the court found Guzman's strike prior true.
References to statutes are to the Penal Code.
The court denied Guzman's Romero motion and sentenced him to 11 years in the state prison. The court chose the midterm of three years, doubled because of the strike prior, plus five years for the serious felony prior. The court noted it did not have the authority to strike the five-year prior but it might do so if the law changed. The court imposed the mandatory minimum restitution fine of $300 as well as court fees of $40, $30, and $10. The court stayed a parole revocation restitution fine of $300. Defense counsel did not object to the restitution fine or any of the court fees.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court did strike Guzman's one-year prison prior under section 667.5, subd. (b).
DISCUSSION
1. The instruction on eyewitness certainty did not violate Guzman's due process rights
Guzman argues CALCRIM No. 315 is "erroneous" and the court violated his state and federal rights to due process of law by instructing the jury with it. That instruction, entitled "Eyewitness Identification," gives the jury a nonexclusive list of 15 "questions" to "consider" "[i]n evaluating identification testimony" by an eyewitness. One of those questions is "How certain was the witness when he or she made an identification?" Guzman points to scientific studies and case law recognizing a weak correlation between a witness's certainty and the accuracy of that witness's identification.
The Attorney General contends Guzman forfeited any objection to CALCRIM No. 315 by failing to request a modification. The second supplemental reporter's transcript that we received from the superior court reflects that, indeed, defense counsel neither objected to the court giving CALCRIM No. 315 nor asked the court to modify it to delete the certainty factor. Nevertheless, we exercise our discretion to consider the issue on the merits.
In addition, we assume the jurors received the written version of the instruction-including the certainty factor-even though the reporter's transcript reflects the trial court did not read that factor to the jury as part of the instruction. (See People v. Edwards (2013) 57 Cal.4th 658, 746 [if discrepancy between written and oral versions of jury instructions, written instructions provided to jury control].)
In Lemcke, the defendant argued instructing the jury to consider an eyewitness's level of certainty, without clarifying the limited correlation between certainty and accuracy, violated due process by lowering the prosecution's burden of proof to the extent it caused "jurors to 'equat[e] certainty with accuracy, when science establishes otherwise.'" (Lemcke, supra, 11 Cal.5th at p. 657.) Our Supreme Court rejected the argument, concluding CALCRIM No. 315's instruction on witness certainty "does not direct the jury that 'certainty equals accuracy, '" "[n]or does the instruction state that the jury must presume an identification is accurate if the eyewitness has expressed certainty." (Lemcke, at p. 657.) Moreover, the court observed, although "the wording of the instruction might cause some jurors to infer that certainty is generally correlative of accuracy," the defendant "was permitted to present expert witness testimony to combat that inference." (Id. at pp. 657-658.) And additional instructions about the presumption of innocence and the prosecution's burden to establish guilt beyond a reasonable doubt further undercut the defendant's contention that the certainty language lowered the prosecution's burden of proof. (Id. at p. 658.) Thus, "when considered' "in the context of the instructions as a whole and the trial record," '" the Lemcke court concluded "listing the witness's level of certainty as one of 15 factors the jury should consider when evaluating an eyewitness identification did not render [the defendant's] trial fundamentally unfair or otherwise amount to a due process violation." (Id. at p. 661.)
However, while the Lemcke court rejected the contention that the certainty instruction in CALCRIM No. 315 violated the defendant's due process rights, our Supreme Court nevertheless agreed with amici curiae that this portion of the instruction "tends to reinforce" the "common misconception . . . that an identification is more likely to be reliable when the witness has expressed certainty." (Lemcke, supra, 11 Cal.5th at p. 647.) The court therefore "refer[red] the matter to the Judicial Council of California and its Advisory Committee on Criminal Jury Instructions to evaluate whether or how the instruction might be modified to avoid juror confusion regarding the correlation between certainty and accuracy," and in the meantime, directed trial courts to "omit the certainty factor from CALCRIM No. 315 unless the defendant requests otherwise." (Id. at pp. 647-648.)
In light of our Supreme Court's holding in Lemcke, we are again compelled to reject Guzman's contention that instructing the jury with the certainty portion of CALCRIM No. 315 violated his due process rights. (See Lemcke, supra, 11 Cal.5th at pp. 657-661.) Moreover, even if the trial court had omitted the certainty factor, as Lemcke now directs, it is our judgment, based on a review of the entire record, that there is no reasonable probability Guzman would have achieved a more favorable result at trial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.) Byron testified he was within five or six feet of Guzman-maybe as close as an arm's length-when Guzman asked the boys about gang membership and then grabbed Byron's red portable JBL Bluetooth speaker. The boys gave police a description of the clothing worn by both the robber (a red polo shirt with white lines and jeans) and the female Hispanic driver of the gray car (blue shirt and blue jeans). When police spotted and followed a gray or silver car, they found a Hispanic woman wearing a blue shirt and blue jeans getting out of the driver's side. Guzman, wearing a red polo shirt with white stripes and jeans, got out of the passenger side. An officer found a red portable JBL Bluetooth speaker in the front passenger side of the car. Guzman was not prejudiced by the jury instruction. (See People v. Greeley (Oct. 19, 2021, H047281) Cal.App.5th [no due process violation or other error in giving CALCRIM No. 315 with certainty factor in burglary case where arriving officer found defendant lying under a truck near the burglarized apartment, with bag containing victim's property].)
2. The parties agree we should remand the case for the trial court to exercise its discretion under Senate Bill 1393
As a consequence of Senate Bill 1393, sections 667, subdivision (a)(1), and 1385, subdivision (b), were amended effective January 1, 2019, to allow a court to exercise its discretion to strike or dismiss a five-year prior serious felony enhancement. The parties agree Senate Bill 1393 is retroactive (People v. Zamora (2019) 35 Cal.App.5th 200, 208) and, accordingly, we should remand the case for the trial court to exercise its newly-granted discretion. We of course express no opinion on how the court should rule.
3. The trial court's imposition of the mandatory minimum restitution fine and court fees did not violate Guzman's constitutional rights
Guzman contends the trial court's imposition of the restitution fine and court fees violated his "right to due process under the federal and California constitutions." Guzman relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
The Attorney General argues "the proper analytic framework is that of the excessive fines clause of the Eighth Amendment." We need not decide which constitutional provision is the correct one to guide our analysis as we find no constitutional violation in any event.
The issues raised in Dueñas and the many cases agreeing and disagreeing with its analysis and holding in the nearly three years since it was decided are currently before our Supreme Court. In granting review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, the Court identified the issues to be briefed and argued: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?" Pending guidance from our high court, we apply the law as it now stands.
First, unlike the defendant in Dueñas, Guzman did not object to the restitution fine or assessments at sentencing. Accordingly, he has forfeited his right to challenge the fine and assessments. (People v. Rodriguez (2019) 40 Cal.App.5th 194, 206; People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) We agree with our colleagues in Division Eight that the forfeiture doctrine applies to the restitution fine and court assessments imposed here under the Penal and Government Codes. (People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153; but see People v. Castellano (2019) 33 Cal.App.5th 485, 488-489 .)
Second, even if Guzman had not forfeited his argument, we agree with our colleagues in Division Two that Dueñas was wrongly decided. (People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted Nov. 26, 2019, S258946; see also People v. Aviles (2019) 39 Cal.App.5th 1055, 1060, 1067-1069; cf. People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [urging caution in following Dueñas and concluding the due process analysis in Dueñas does not justify extending its holding beyond the "extreme facts" that case presented].)
Third, in any event, Dueñas is distinguishable from Guzman's case on the merits. Dueñas was a homeless, disabled mother of young children who was unable to work and was put on probation because of traffic violations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1162.) She faced incarceration because of her inability to pay the restitution fine and court assessments that ensnared her in a "cycle of repeated violations and escalating debt." (Id. at pp. 1162, 1164, fn. 1.) Guzman-unlike Dueñas- does not face incarceration because of an inability to pay a restitution fine and assessments. He is in prison because he robbed a young teen while simulating the possession of a weapon. There is no indication he will suffer the same "cascading consequences" Dueñas suffered as a result of a "series of criminal proceedings driven by, and contributing to, [his] poverty." (Id. at pp. 1163-1164.)
DISPOSITION
We affirm Edgar Guzman's conviction. We remand the case to allow the trial court to consider any motion by Guzman to strike his serious felony prior under Senate Bill No. 1393.
We concur: EDMON, P. J., MATTHEWS, J. [*]
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.