Opinion
A157406
06-23-2020
THE PEOPLE, Plaintiff and Respondent, v. JABULANI WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 175883)
Jabulani Williams stabbed a man in a food bank. A jury convicted him of first degree murder (Pen. Code, § 187, subd. (a)), and found true an allegation he personally used a deadly weapon (§ 12022, subd. (b)(1)). The trial court sentenced Williams to state prison, imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), and awarded custody credits.
Undesignated statutory references are to the Penal Code.
Williams appeals. He contends: (1) the court erred by instructing the jury to consider an eyewitness's level of certainty in identifying the defendant (CALCRIM No. 315); (2) trial counsel was ineffective for failing to object to the amount of the restitution fine; and (3) he is entitled to additional custody credits.
We correct the custody credits. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Williams with first degree murder and alleged he used a deadly weapon, a knife, in the commission of the offense (§§ 187, subd. (a), 12022, subd. (b)(1)). At Williams's 2018 trial, the parties offered the following evidence:
Prosecution Evidence
Williams is African American. In November 2013, he was 37 years old. He was 5'10" and weighed 170 pounds.
A. The Murder
Casey Walker was stabbed while waiting in line at a food bank on 73rd Avenue in East Oakland. The receptionist at the food bank witnessed the murder. She saw an African American man with long dreadlocks, wearing a black hoodie, approach Walker. The man reached around Walker, struck him in the stomach, and "ran out the door." Bleeding from his midsection, Walker said: " 'I've been stabbed.' " He died from the stab wound.
Surveillance video from a nearby apartment building showed two men walking along 73rd Avenue toward the food bank shortly before the murder. The taller man, who was wearing a hooded sweatshirt or jersey, paused in front of the food bank, then headed off camera, toward the food bank's entrance. About 20 seconds later, the man left the food bank and ran toward the intersection of 73rd Avenue and Favor Street.
B. Williams's Roommates Identify Him and Describe His Role in the Murder
Williams lived at a house at the intersection of 73rd Avenue and Favor Street with several people, including Raul Gonzalez. Gonzalez heard Williams say a man had robbed and pistol-whipped him; Williams vowed to " 'kill the son of a bitch.' " A couple months later, a man came to the house and told Williams the " 'guy [who] robbed him' " was at the food bank. Williams asked Gonzalez if he had a gun; Gonzalez "said no." Williams disappeared inside the house.
When Williams emerged, he was wearing a dark-colored hooded sweatshirt. He and another man began walking toward the food bank. A short time later, Williams came running back to the house and asked Gonzalez for a ride. Gonzalez declined. He asked Williams " 'what happened to the hoodie . . . ?' " Williams responded that he " 'had gotten rid of it.' " Williams also said he " 'got rid' " of the knife. When police showed Gonzalez the surveillance video and still photos derived from it, Gonzalez said the taller person was Williams.
Williams told another roommate, Cynthia Cruz, that he had stabbed a man who had robbed him. Cruz knew Williams kept knives in his room. When she saw the surveillance video, Cruz said there was a 50 percent chance the taller man was Williams, based on his "dreads [and] body movements." Cruz used drugs. She had been arrested and offered immunity in exchange for her testimony.
C. Other Witnesses Identify Williams
Police interviewed Isaac Alford while he was in jail. On the day of the murder, Alford sold drugs to Walker and watched him walk toward the food bank. A man with dreadlocks followed Walker to the food bank. The man was in his late 30's, was about 5 feet 11 inches or 6 feet tall, and was wearing a black hooded sweatshirt. When shown a photo lineup, Alford pointed to Williams's photograph and said, " 'that's him,' " telling police Williams killed Walker. Alford was released from custody after identifying Williams.
On cross-examination, Alford testified he lied to police when he described the assailant and identified Williams because he wanted to get out of jail. Alford did not see a man with dreadlocks near the food bank; he was repeating a story he heard.
On the day of the murder, Shawn Brown was working as a lookout, helping sell drugs near the food bank. He saw a tall, slim, African American man with dreadlocks run in and out of the food bank. A few months later, Brown was arrested and shown a "bunch of pictures of different people." When he saw Williams's picture, Brown said, "it kind of looked like" the man he saw run into and out of the food bank, but Brown "didn't want to say for sure."
D. The Receptionist Identifies Williams
The receptionist was about 11 feet away from the man who stabbed Walker. She could see the man's face "a little bit." She told police the man was about 5'9" or 5'10", weighed about 175 pounds, and appeared to be 30 to 35 years old. The receptionist viewed a six-person physical lineup. Next to Williams's picture, the receptionist put a question mark, to indicate she believed the person was "the suspect but [was] not sure."
At trial, the receptionist identified Williams as the man who stabbed Walker. She was certain about her identification. When asked why, the receptionist said she "just recognize[d] him now." When questioned whether her memory was better closer to the incident than at the time of trial, the receptionist replied, "I'll never forget it."
Defense Evidence
Psychologist Geoffrey Loftus, Ph.D., testified as an expert on eyewitness identification and explained how memories are formed. Certain factors may render a memory inaccurate. For example, a witness may have insufficient time to observe the event or be too far away to see it well. Stress and fear can affect a witness's memory. In response to a hypothetical where a victim is stabbed suddenly, Dr. Loftus testified an eyewitness may be focused on his or her safety rather than on the attacker's appearance.
Post-event information may affect memory: after the event, the witness may "fill holes, gaps, make for a better story of what happened." A witness can have a "very strong" memory—one recounted with "a great deal[ ] of confidence"—but that memory may be "of dubious accuracy" or "potentially false." A strong memory, according to Dr. Loftus, is not necessarily an accurate memory.
Dr. Loftus testified police lineup procedures are not always reliable, that witnesses have difficulty recognizing and identifying people from other races, and that eyewitnesses have misidentified perpetrators.
CALCRIM No. 315
With defense counsel's agreement, the court instructed the jury with CALCRIM No. 315, on eyewitness identification. The court instructed the jury: "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? [¶] . . . 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? [¶] . . . 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 the defendant not guilty."
Verdict and Sentence
In December 2018, the jury convicted Williams of first degree murder and found the deadly weapon allegation true (§§ 187, subd. (a), 12022, subd. (b)(1)). The probation department summarized Williams's extensive criminal history. Probation reported Williams stopped working in 2011 because his wages were garnished due to child support obligations, and that he had no verifiable income. Noting the "senseless and violent attack on the victim resulting in death," and the "planning and sophistication" involved, the probation department recommended the court impose the maximum restitution fine of $10,000.
At sentencing, the court acknowledged Williams's criminal history and expressed dismay that he had not taken advantage of rehabilitation opportunities. The court sentenced Williams to 25 years to life on the murder conviction, plus an additional year for the deadly weapon enhancement. It imposed a $10,000 restitution fine and awarded Williams 1,725 days of custody credits.
DISCUSSION
I.
Certainty Factor in CALCRIM No. 315
Williams's first contention is the court erred by including the "certainty factor" in CALCRIM No. 315, i.e., the language asking the jury to consider how certain the witness was when making an identification. This claim is forfeited. Defense counsel agreed to the instruction and did not suggest the court eliminate the certainty language. If Williams "wanted the court to modify the instruction, he should have requested it." (People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez) [failure to request modification forfeited claim on appeal]; People v. Ward (2005) 36 Cal.4th 186, 213 [trial court has no sua sponte duty to modify eyewitness identification instruction].)
We address—and reject—the claim on the merits to obviate Williams's ineffective assistance of counsel claim. The instruction was not, as Williams claims, incorrect. (People v. Golde (2008) 163 Cal.App.4th 101, 119.) The California Supreme Court has held there is no error in the portion of the instruction advising the jury it may consider an eyewitness's level of certainty, notwithstanding "scientific studies that conclude there is, at best, a weak correlation between witness certainty and accuracy." (Sánchez, supra, 63 Cal.4th at pp. 461-462.)
Our high court held a reexamination of the issue "should await a case involving only certain identifications." (Sánchez, supra, 63 Cal.4th at p. 462.) Such a case, where there are no uncertain identifications, is pending before the California Supreme Court in People v. Lemcke, review granted October 10, 2018, S250108. Until the Supreme Court changes the law, we are bound by its holding that including the certainty factor in jury instructions on eyewitness identifications is not error. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Williams's lengthy discussion of authority from other jurisdictions does not demonstrate that including the certainty language was erroneous. His other challenges to the instruction fail. The instruction does not lower the prosecution's burden of proof. Instead, it reminds the jury the prosecution has the burden of proving its case beyond a reasonable doubt. Nor did the instruction interfere with Williams's right to present a defense. Williams offered a mistaken identification defense, and presented the testimony of Dr. Loftus, who described circumstances that may affect a witness's memory, and who explained that a witness's certainty does not equate to accuracy.
Even if we assume the court should have eliminated the certainty language from the instruction, Williams's claim fails because he cannot demonstrate prejudice, e.g., that it is reasonably probable he would have received a more favorable result had the court deleted the certainty factor. (Sánchez, supra, 63 Cal.4th at p. 463.) We reach this conclusion for two reasons. First, "[t]he instruction cited the certainty factor in a neutral manner, telling the jury only that it could consider it. It did not suggest that certainty equals accuracy." (Sánchez, at p. 462.) Here, advising the jury to consider the certainty factor "could only benefit [Williams]" because the "case involved many identifications, some certain, some uncertain." (Ibid.) Williams "would surely want the jury to consider how uncertain some of the identifications were," particularly when that factor dovetailed with Dr. Loftus's testimony that certainty does not equal accuracy. (Ibid.)
Second, the receptionist's identification was not the only evidence connecting Williams to the murder. Several witnesses offered testimony demonstrating Williams had the motive and opportunity to murder Walker. For example, Gonzalez heard Williams say a man had robbed and pistol-whipped him, and that he was going to kill that man. Upon learning Walker was at the food bank, Williams inquired about a gun. To Cruz, Williams admitted stabbing the man who robbed him. Other witnesses identified a man resembling Williams heading toward the food bank at the time of the murder, and hurriedly leaving shortly thereafter. Finally, surveillance video played for the jury showed a man resembling Williams walking toward the food bank's entrance at the time of the murder.
In light of the strong evidence linking Williams to the murder, it is not reasonably probable Williams would have obtained a more favorable result had the court omitted the certainty factor from the instruction. (Sánchez, supra, 63 Cal.4th at p. 463; People v. Wright (1988) 45 Cal.3d 1126, 1144.) We would reach this same conclusion applying the harmless beyond a reasonable doubt standard of review. (Sánchez, at p. 463; Chapman v. California (1967) 386 U.S. 18, 24.)
II.
Trial Counsel's Failure to Object to Amount of Restitution Fine
Next, Williams claims trial counsel was ineffective for failing to object to the amount of the restitution fine. According to Williams, the court likely would have imposed the minimum fine—$300—had counsel objected, because "compelling evidence" demonstrated he "will never be able to pay" the maximum fine of $10,000.
Williams does not argue, pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157, that the court violated his constitutional rights by imposing the restitution fine without considering his ability to pay. " ' "[I]ssues do not have a life of their own: if they are not raised . . . we consider [them] waived." ' " (Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 504, fn. 7.) The California Supreme Court is considering whether a trial court must consider a defendant's ability to pay before imposing or executing fines, fees and assessments, and if so, which party bears the burden of proof regarding inability to pay. (People v. Kopp, review granted Nov. 13, 2019, S257844.) --------
Under section 1202.4, a trial court must impose a restitution fine for each felony conviction unless there are compelling and extraordinary reasons for not imposing the fine and the court states those reasons on the record. (§ 1202.4, subd. (b).) The amount of the fine—$300 to $10,000—is within the court's discretion and should be commensurate with the seriousness of the offense. (§ 1202.4, subd. (b)(1).) In setting the fine, the court may multiply the minimum fine "by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of [the defendant's] felony" convictions. (§ 1202.4, subd. (b)(2).)
Inability to pay is one factor a court may consider when setting the restitution fine. (§ 1202.4, subds. (c), (d).) Other factors include the seriousness and gravity of the offense and the circumstances of its commission. (§ 1202.4, subd. (d).) A defendant has the burden to demonstrate inability to pay; express findings on the factors bearing on the amount of the fine are not required. (Ibid.)
Here, Williams was "obligated to object to the amount of the fine and demonstrate his inability to pay anything more than the $300 minimum." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) Trial counsel did not object to the amount of the fine, nor raise the issue of Williams's purported inability to pay. Thus, Williams forfeited his challenge to the amount of the fine. (Id. at p. 1153; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Even if we assume for the sake of argument trial counsel's representation was deficient, Williams's claim fails because he cannot show prejudice, e.g., a reasonable probability the court would have reduced the fine below the maximum. (Strickland v. Washington (1984) 466 U.S. 668, 694.)
"A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "The likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 112.) " 'Surmounting Strickland's high bar is never an easy task.' " (Id. at p. 105.) Here, Williams cannot establish a likelihood the court would have imposed a lower restitution fine had trial counsel objected. When it imposed the maximum fine, the court was aware Williams had a limited ability to pay because the court had read and considered the probation report detailing Williams's financial situation. The court was also aware of the seriousness and gravity of the offense and the circumstances surrounding the commission of the crime, because the probation report described the vicious murder. At sentencing, the court noted Williams's criminal history and his failure to take advantage of various rehabilitation opportunities. In light of the nature and severity of the offense, it is not reasonably probable the court would have imposed a lesser restitution fine had trial counsel objected. Williams's ineffective assistance of counsel claim fails.
III.
Entitlement to Additional Custody Credits
Finally, Williams argues he is entitled to 77 days of additional custody credits. The Attorney General agrees, as do we. Williams was arrested on May 28, 2014 and sentenced on May 3, 2019. He spent 1,802 days in custody but was awarded only 1,725 days of custody credits. He is entitled to an additional 77 days of custody credits, for a total of 1,802 days of custody credits. (People v. Bravo (1990) 219 Cal.App.3d 729, 735.)
DISPOSITION
We direct the trial court to award Williams 1,802 days of custody credits and to amend the abstract of judgment accordingly. The court must forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Needham, J. /s/_________
Burns, J.