Opinion
B226041
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS HERNANDEZ, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA072096)
APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Jose Luis Hernandez of second degree robbery (Pen. Code, § 211; counts 1 and 2) and attempted second degree robbery (§§ 664/211; count 3). As to each count, the jury found true the following allegations: personal use of a firearm (§ 12022.53, subds. (b) & (e)(1)), a principal was armed with (§ 12022, subd. (a)(1)) and personally used (§§ 12022.53, subds. (b) & (e)(1)) a firearm, and the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)). Appellant was sentenced to state prison for a total term of 20 years, 4 months. He appeals from the judgment of conviction. His sole contention is that the trial court erred in failing to instruct the jury on relevant factors of eyewitness identification pursuant to CALCRIM No. 315. We affirm.
All further code section references are to sections of the Penal Code unless otherwise indicated.
Appellant was jointly tried with Pedro Mendoza and William Gonzalez. The jury acquitted Gonzalez, convicted Mendoza, and found the special allegations as to Mendoza not true. We affirmed the judgment as to Mendoza in a prior unpublished opinion, B223371, from which we draw our summary of the trial evidence.
BACKGROUND
On the evening of August 23, 2009, Damien Wilson, Yesenia and Cesar Herrera, and Marvin Williams were standing outside the apartment building located at 13935 South Kornblum Avenue in the city of Hawthorne. A gray sports utility vehicle (SUV) stopped in the middle of the street near the group. A man with a gun, later identified as appellant, got out of the SUV and approached the group.
Appellant brandished his gun at the group of people and asked "Where are you from?" Wilson and the Herreras understood this question as an inquiry regarding street gang affiliation. After the members of the group denied that they were affiliated with a gang, appellant held his gun inches from Wilson's head and he ordered Wilson and the others to empty their pockets. Appellant picked up Wilson's cellular telephone, wallet, and a few dollars that Wilson tossed onto the ground. Cesar Herrera handed appellant six dollars. Neither Williams nor Yesenia Herrera gave appellant any property.
As appellant got back into the SUV, another man, later identified as William Gonzalez (see fn. 2, ante), got out of the SUV and approached the group near the sidewalk. Although it was disputed whether Gonzalez actually said anything,Wilson believed Gonzalez had a gun in his hand and got out of the SUV in order to provide back-up assistance for appellant. The SUV started to drive away without Gonzalez. He yelled, "Wait, wait!" and the SUV stopped. He then entered the rear passenger seat before the SUV sped away.
At trial, Wilson testified that Gonzalez did not say anything after getting out of the SUV. Yesenia Herrera testified that Gonzalez "yelled something towards us."
The police were called and they arrived within minutes. Approximately 20 minutes later and less than a mile away, the California Highway Patrol stopped a silver Honda SUV that was driven by a man later identified as Pedro Mendoza (see fn. 2, ante). The license plate number matched the partial license plate number reported by the robbery victims. After removing Marlyn Aguilar from the Honda SUV, the Highway Patrol found a loaded .45 caliber handgun tucked in her waistband. The Highway Patrol also found Wilson's cellular telephone and seven dollars in cash inside the SUV.
The police escorted Wilson and the Herreras one at a time to a location where the suspects were being detained. All three identified appellant as the gunman and Gonzalez as the second man who got out of the SUV. Although all three failed to identify Mendoza as the driver, they noted that Mendoza was wearing a hat covered by a "black sweater with the hood," like the driver of the SUV. The Herreras' daughter, Zennie, saw a gray SUV driving away and she told police that the driver was wearing a "dark-colored hoodie."
At trial, Wilson did not identify any of the defendants. During the preliminary hearing, Cesar Herrera initially identified appellant as the gunman who first got out of the SUV, and identified Gonzalez as the second gunman. However, after examining additional photographs at trial, Mr. Herrera identified Hernandez as the gunman and Gonzalez as the second man who got out of the SUV. During the preliminary hearing, Yesenia Herrera identified appellant as the gunman. After the hearing, the prosecutor informed her that she had identified the "wrong" people by confusing appellant and Hernandez.
After examining additional photographs at trial, Herrera identified Mendoza as the driver of the SUV.
Detective Keith Chaffin of the Hawthorne Police Department's Gang Intelligence Unit testified that appellant was a self-admitted member of the "Surenos 13" street gang. Detective Chaffin also testified that to his knowledge Mendoza and Gonzalez were not members of any gang. Appellant did not testify or present any evidence in his defense.
DISCUSSION
Appellant contends that the trial court erred by failing to instruct the jury on factors relating to eyewitness identification pursuant to CALCRIM No. 315. The Attorney General concedes that "it appears appellant was entitled to . . . the instruction," but contends that the error was not prejudicial. We agree.
CALCRIM No. 315 informs the jury 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, 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[, and __________ (insert any other relevant circumstances) ]?
"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 an identification?
"Are the witness and the defendant of different races?
"[Was the witness able to identify other participants in the crime?]
"[Was the witness able to identify the defendant in a photographic or physical lineup?]
"[_____________________ (insert other relevant factors raised by the evidence).]
"Were there any other circumstances affecting the witness's ability to make an accurate identification?
"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 that the defendant not guilty."
CALCRIM No. 315, or a comparable instruction listing, in a neutral manner, relevant factors on eyewitness identification supported by the evidence, "should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence." (People v. Wright (1988) 45 Cal.3d 1126, 1144.) Here, appellant requested that the trial court give CALCRIM No. 315. The trial court declined, because "there was no expert testimony relating to a lot of factors" listed in the instruction. However, expert testimony on the relevant factors is not required. Rather, the "instruction provides the jury with sufficient means to evaluate eyewitness identification testimony and alerts jurors to the factors that may affect eyewitness identifications. . . . [E]xpert testimony may be used when appropriate to further elucidate the effect of the factors listed." (Id. at p. 1154, italics added.)
Although the trial court erred, the error was not prejudicial, because it is not reasonably probable that a different result would have been reached in the absence of the error. (Id. at p. 1144; see People v. Watson (1956) 46 Cal.2d 818, 836.) In his closing argument, the prosecutor conceded that there were discrepancies in the evidence, including in the identifications by Wilson and the Hererras, and that the jury had to consider the inconsistencies in determining whether guilt had been proven. The prosecutor told the jury, in part, that the jurors had to decide "whether those [inconsistencies] shake your belief in the I.D.'s made that very night" and whether "[e]ven if someone is sure of something, maybe they're wrong." However, he urged that the evidence, particularly the discovery of Wilson's cellular telephone in the car stopped by the police, corroborated the identification of appellant and the other defendants.
In his closing argument, appellant's defense counsel noted that the critical issue was the identification of the robber, and discussed the inconsistencies in the witnesses' testimony and identifications at length. The jury was thus obviously aware of the importance of evaluating the eyewitness identification of appellant, and of the conflicting evidence on that topic.
Most significantly, the evidence of appellant's guilt was strong. Within 20 minutes of the robbery, the police stopped a vehicle that fit the description given the victims. The license plate matched the partial license plate the victims reported to the police. When Wilson and the Herreras were taken to the scene, each separately identified appellant as the gunman. Moreover, the cellular telephone taken by appellant from Wilson in the robbery was discovered inside the vehicle. On this record, it is not reasonably probable that a different result would have been reached if the trial court had instructed pursuant to CALCRIM No. 315.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.