Opinion
A154543 A154967
11-27-2019
In re DANIEL S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DANIEL S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JW176099)
This juvenile delinquency case turns on the accuracy of a victim-eyewitness identification of one of three young men who had robbed the victim and his companions of their belongings. After identifying 16-year-old appellant Daniel S. at a "cold show" as one of the robbers, one victim-eyewitness again identified him with "95" percent certainty at trial. The trouble is, a different victim-eyewitness identified a different man at the cold show, so that four men altogether were identified and arrested on the basis of "positive cold shows," while all the victims agreed there were only three robbers.
A "cold show," sometimes called a "showup," is an in-field identification procedure, alternative to a line-up, that is usually conducted when a possible suspect is apprehended shortly after a crime occurs. In this case, the robbery victims individually viewed one detainee at a time.
The judge found Daniel was one of the robbers, declared him a ward of the court, and put him on home detention. We hold the evidence was sufficient to find Daniel was guilty of three robberies, the cross-examination of the key prosecution witness was not unconstitutionally curtailed, and the issue regarding modification of a CALCRIM instruction was forfeited. We therefore affirm the juvenile court's orders.
I. BACKGROUND
At approximately 12:40 a.m., April 1, 2017, Eduardo Flores (Eduardo), Justin Stutzman, Angel Ronquillo, and Aricka Tasabia, were in Dolores Park in San Francisco, near 20th and Church Streets, waiting to go to a club. Eduardo and Tasabia sat on a park bench. Ronquillo stood next to Tasabia, and Stutzman stood in front of Eduardo. The lighting was dim.
One of the robbers also bears the surname "Flores." We will therefore refer to both individuals by their first names.
Three Hispanic men approached them from the sidewalk bordering the park. One had long hair to his shoulders, wore a beanie, and had gauges, i.e., the type of earrings that opened up the earlobe and left an open hole, and was roughly five feet, eight inches tall. Another, about the same height as the man with long hair, had his hair in a ponytail and wore glasses. The third was shorter, roughly five feet, four inches; he was "almost chubbier" and wore dark or black clothes, including shorts. The approaching men asked Ronquillo for cigarettes, but Ronquillo said they did not have any.
At that point, the long-haired man wearing the beanie held a knife to Ronquillo's throat and told Eduardo and his friends to stay relaxed. The man with the glasses and ponytail struggled with Stutzman, trying to get him into a choke hold and punching him. When Eduardo saw the robber with glasses take a swing at Stutzman, Eduardo stood up, but the robber with the knife told him to relax, so Eduardo sat down again. Standing to the side of Eduardo, the shorter, chubbier robber grabbed Eduardo's hooded high school soccer sweater and shirt and pulled both over Eduardo's head. He then moved to the front left of Eduardo, standing in front of Eduardo, between him and Stutzman.
At the jurisdiction hearing, Eduardo remembered the third robber, who took his sweater, was wearing long shorts, which fit loosely and covered his knees, but he did not mention this descriptive detail to the police the night of the robbery. Eduardo believed the third robber was wearing something under the shorts, like dark leggings, sweats, or socks. Eduardo told the police the person wore a crew sweatshirt, one without a hood, and had short, dark, curly hair. He was "chunkier," "thicker," more "heavy-set" than Eduardo. Eduardo was six feet tall, weighed 170 pounds, and described himself as "skinny." The third robber was "shorter" than Eduardo; the police wrote down five feet, four inches, but Eduardo did not think he gave them that estimate. Daniel was five feet, seven inches tall and not overweight.
The man wielding the knife asked for their phones, wallets, and money. He gathered their belongings, going from Ronquillo to Stutzman to Eduardo. When Eduardo complained about being cold, the robber with the knife told the one who had taken Eduardo's shirt and sweater to return Eduardo's shirt. Stutzman told the robbers to leave Tasabia alone, and all three assailants ran away.
Stutzman chased them down the sidewalk, and Ronquillo and Eduardo followed. Eduardo did not see who got into the car, he only saw a car door close and the car speed away, with his friends in pursuit. The car was described as an older dark blue or black Honda Accord.
A neighbor on a nearby balcony offered to assist. The man came downstairs, called 911, and used his iPhone to track Stutzman's stolen iPhone. Police Officer Nicholas Delgado responded to the 911 call reporting a strong-arm robbery. The victims flagged him down and told him they had just been robbed. Eduardo and the others provided descriptions of their attackers, as recited above. The helpful neighbor showed Delgado that he was tracking Stutzman's stolen iPhone on his cellular phone. Stutzman's phone was tracked to London Street and France Avenue in the Ingleside district. Delgado took over tracking the phone.
At 1:17 a.m., officers patrolling near London Street and France Avenue spotted an old, dark blue Honda, with the hood still warm, parked at London and Russia, which was near where Stutzman's phone was pinging. They discovered by running the license plates through the California Law Enforcement Telecommunications System that the Honda was registered to Alexander Mena Morales (Morales). Officers in the area stopped Kevin Flores (Kevin) and Luis F. (Luis), who matched the description of two of the robbers. Morales was an adult, as was Kevin, whereas Luis and Daniel were minors. The officers contacted Delgado over the air and asked him to "ping" Stutzman's cell phone, which would produce an audible alarm on the phone. When a phone in Kevin's possession alerted, the officers arrested both men.
Morales is referred to as Alexander Mena in much of the record.
Police found a knife in Kevin's jacket pocket, which Eduardo later identified as having been used in the attack. Officers also found Stutzman's and Eduardo's phones on Kevin. Searching the nearby area, police located Eduardo's sweater and identification, as well as access cards belonging to Stutzman and Eduardo. These items were found within a block of where Kevin and Luis had been detained.
Because the victims had reported three robbers, police continued to search for a third suspect. Not knowing whether Kevin and Luis were the actual robbers, other officers in the area saw what they believed were three men, one wearing shorts, head down a staircase leading to Mission Street. Those officers detained the three individuals on Mission Street about a block and a half from where Kevin and Luis were detained. One of the suspects turned out to be a woman. Those detained were Daniel, Morales, and Celeste Mena (Celeste).
None of the victims had described a female perpetrator.
Police then began organizing a series of cold shows with the victims. Delgado accompanied Ronquillo and Stutzman to the viewing locations. The police took each of the victims separately to view the vehicle first. Second, the police took them to view Kevin and Luis, and Eduardo identified both. Eduardo testified the man with the long hair and beanie (Kevin) held the knife to Ronquillo's throat, and the man with the ponytail (Luis) grabbed Stutzman. (Stutzman was not asked to participate in the cold show because Delgado believed he was too inebriated to offer a reliable identification.)
Finally, the three competent witnesses were shown Daniel, Morales, and Celeste. At the third location, Eduardo identified Daniel as the third robber and said he did not recognize Morales or Celeste. He was the only one of the three to identify Daniel. It may be inferred that at least one of the others identified Morales as the third robber at the cold show.
Officer Delgado testified that all four men were arrested after the third cold show on the basis of "positive cold shows." The court did not allow Daniel's counsel, on hearsay grounds, to cross-examine Delgado or Eduardo concerning any details of the conflicting out-of-court identification. The witness who identified Morales had to be either Ronquillo or Tasabia (or both), since Stutzman was not allowed to complete the cold show identification process due to his intoxication.
Daniel was wearing black and red basketball shorts and black and red or bright pink shoes, which was consistent with the police computer-aided dispatch (CAD) description that one robber may have been wearing shorts and high socks. Eduardo remembered Daniel was wearing shorts and red shoes when he identified him at the cold show. Daniel was not wearing high socks or leggings. Eduardo recognized Daniel at the cold show because of the clothes he was wearing, his general body build, and his curly hair; he could not identify him based on his facial features.
In his description to Delgado, Eduardo did not mention the third robber was wearing shorts. Eduardo testified he did not mention shorts to the police at all. The CAD records from that night showed a suspect description broadcast that one of the robbers possibly wore "shorts and high socks." Counsel stipulated that Stutzman was the one who gave that description to the police.
At the jurisdiction hearing, Eduardo was the only victim to testify and the only witness to identify Daniel as one of the robbers. Eduardo told the judge that when he saw Daniel in the courtroom, Daniel's face "clicked" as that of the third robber: "When I saw him again, I recognized him. I recognized his hair being curly and that size." Eduardo did not, however, recognize a picture of Daniel taken on the night of the crime. At trial, Eduardo initially estimated his confidence in the in-court identification at about "95" percent. He later testified his memory had faded over time, and he estimated his ability at trial to remember the events of the crime was a level of seven or eight on a 10-scale. Eduardo also testified, while he was confident in his identification, he was "[n]ot completely confident."
We infer from Officer Delgado's testimony that another victim, probably Ronquillo, identified Morales as the third robber at the cold show. (See fn. 5, ante.) Morales was the registered owner of the dark blue Honda. Morales more closely matched Eduardo's description of the third robber in that he was a couple of inches shorter than Daniel, about 20 pounds heavier, and could more aptly be described as "chunkier" or "chubbier." Morales's hair was curlier than Daniel's. So far as the trial record discloses, none of the items stolen from the victims was located on Daniel, on Morales, or in the blue car.
Thus, the combined witnesses identified all four men: Kevin, Luis, Morales, and Daniel as being among the robbers, and all four were arrested. The victims all agreed, however, there were just three robbers. When confronted with that fact at trial, Eduardo speculated that the fourth man might have been driving the getaway car. None of the victims saw the driver, however, so at least one of the identifications of the third robber was wrong. We take judicial notice that Morales was eventually convicted by plea of being an accessory after the fact. (Pen. Code, § 32; Evid. Code, §§ 452, subd. (d), 459.) This is consistent with his having been the getaway driver, which makes sense because the car belonged to him.
Further undesignated statutory references are to the Penal Code.
As part of the defense case, Daniel's father testified that Daniel had asked for money and had gone out for a burrito on the night of the robberies. Morales and Celeste are Daniel's cousins. Morales was about three years older than Daniel, a little shorter, and about 20 pounds heavier. Morales and Daniel had grown up together, they lived around the corner from each other, and they were very close. Daniel was five feet, seven inches tall and was not overweight.
In support of a motion to dismiss at the close of the prosecution's case for failure to present sufficient evidence of guilt (Welf. & Inst. Code, § 701.1), Daniel's attorney argued that one of the four suspects had been misidentified and that Eduardo's identification was not trustworthy. Counsel argued Eduardo's ability to observe Daniel had been very limited. He had not been focused on the man who stole his sweater, but rather on the man holding a knife to Ronquillo's throat and the other man choking Stutzman. The lighting had been dim, and Eduardo had been seated through most of the interaction, not face-to-face with the third robber. Eduardo thought the person who took his sweater was "heavier or chunkier than he," which Daniel was not. Even Officer Delgado agreed that Eduardo's description that night did not fit Daniel. Finally, at the jurisdiction hearing, Eduardo was unable to recognize a photo of Daniel taken on the night of the robbery.
As Daniel's trial counsel pointed out, Eduardo's description matched another suspect, Morales, who was identified by another victim as the person who took Eduardo's sweater. Eduardo's "95" percent confidence estimation was discussed, but defense counsel never suggested that the level of certainty was not meaningfully related to accuracy based on current research, as acknowledged by the California Supreme Court. (People v. McDonald (1984) 37 Cal.3d 351, 361-377 (McDonald), overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914; see also People v. Sánchez (2016) 63 Cal.4th 411, 494-498 (conc. opn. of Liu, J.) (Sánchez).)
The court denied the motion to dismiss. After consulting CALCRIM No. 315 at defense counsel's request, on April 26, 2018, the court found Daniel had committed three counts of robbery on the night in question. CALCRIM No. 315 contains a long list of factors the trier of fact may consider in determining the credibility of eyewitness identification, including the witness's degree of certainty.
On June 8, 2018, the court declared Daniel a ward of the court and ordered him to reside in his parents' home under the supervision of the probation department with various conditions of probation, and to serve two weekends in custody. Daniel filed a timely notice of appeal. A restitution hearing was held thereafter, and Daniel was ordered to pay $1,144 to Eduardo and $50 to Ronquillo. Daniel also appealed the restitution order, and the cases were consolidated in this court.
II. DISCUSSION
In A154543, Daniel appeals on three grounds: (1) the juvenile court's finding that he committed three robberies was not supported by substantial evidence, and the order declaring him a ward violated due process because it was based on a single eyewitness identification not corroborated by extrinsic evidence; (2) the court unduly restricted cross-examination of Eduardo to highlight the discrepancy of his identification from the identification by another witness of a different person in the cold show in violation of the Sixth Amendment; and (3) the court erred in considering an unmodified version of CALCRIM No. 315 because it identified the witness's "certainty" of the identification as a factor to consider in determining the accuracy of an eyewitness's identification.
This issue is currently before the California Supreme Court in People v. Lemcke, review granted October 10, 2018, S250108.
In A154967, Daniel raises no specific issue about the restitution order in his briefs.
A. Claimed Insufficiency of the Evidence
1. Eduardo's identifications were substantial evidence of Daniel's guilt
As a matter of due process, a state criminal conviction must be supported by evidence sufficient to justify a rational trier of the facts to find guilt beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 316, 319 (Jackson); People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) We review a claim of insufficiency of the evidence for substantial evidence. (People v. Westerfield (2019) 6 Cal.5th 632, 713; People v. Hunter (2017) 15 Cal.App.5th 163, 184; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) Substantial evidence is that which is reasonable, credible and of solid value. (People v. Ghobrial (2018) 5 Cal.5th 250, 281; Johnson, at p. 576; In re Carlos J. (2018) 22 Cal.App.5th 1, 6.) A " 'mere modicum' " will not suffice (Jackson, at p. 320), nor will a mere scintilla of evidence (Carlos J., at p. 7).
The California Supreme Court, however, has held the testimony of a single witness is substantial evidence supporting a judgment (People v. Ghobrial, supra, 5 Cal.5th at p. 281; Evid. Code, § 411), even if uncorroborated. (People v. Gammage (1992) 2 Cal.4th 693, 700; see also People v. Hunter, supra, 15 Cal.App.5th at p. 184.) This rule applies to eyewitness identification. "Identification of the defendant by a single eyewitness may be sufficient to prove the defendant's identity as the perpetrator of a crime." (People v. Boyer (2006) 38 Cal.4th 412, 480 (Boyer).) "Purported weaknesses in identification testimony of a single eyewitness are to be evaluated by the [factfinder]." (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372; accord People v. Mendez (2010) 188 Cal.App.4th 47, 59.) We cannot reject the testimony of a witness the trier of fact chose to believe unless the testimony is physically impossible or its falsity is plainly apparent. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; accord, People v. Mohamed (2011) 201 Cal.App.4th 515, 521.) " 'Apropos the question of identity, to entitle a reviewing court to set aside a [factfinder's] finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.' " (Mohamed, at p. 521.)
Daniel reminds us that we must consider the whole record when conducting our substantial evidence review. (Jackson, supra, 443 U.S. at p. 319; Johnson, supra, 26 Cal.3d at pp. 576-577; People v. Fiore (2014) 227 Cal.App.4th 1362, 1385.) We cannot look solely at Eduardo's identifications of Daniel; we must consider that evidence in light of the other evidence in the record, and we must evaluate the record in a light most favorable to the prosecution. (Johnson, at p. 576; Fiore, at p. 1385.) Daniel argues, in addition to the identification of Morales by another witness and the fact that no other victims identified Daniel, there was a lack of extrinsic corroboration. So far as the record reveals, no stolen items were recovered from Daniel when he was arrested. There is also no hint in the record of physical evidence linking Daniel to the crime, such as fingerprint or DNA evidence. Moreover, Daniel did not match Eduardo's previous description that his attacker was five feet, four inches tall and was "heavy-set" or on the "chubbier" side. Officer Delgado agreed that Daniel did not fit Eduardo's description of the third robber.
There is some doubt whether Eduardo provided this height estimate, or one of the other victims or witnesses did.
These factors undercut the force of the identification by Eduardo, but they do not destroy it so thoroughly that it no longer constitutes substantial evidence upon which a trier of fact could convict beyond a reasonable doubt under Jackson, supra, 443 U.S. 307. Despite the weaknesses in the prosecution's case, there are several reasons the trial court might have credited the identifications by Eduardo, both at the cold show and at the jurisdiction hearing.
First, Eduardo captured rather remarkable detail in describing the appearances of the first two robbers, right down to the style of Kevin's earrings. These were not vague or generic descriptions, which shows Eduardo had good observational skills. The descriptions were precise enough to draw suspicion to Kevin and Luis when they were spotted in the area where Stutzman's phone was pinging. Once the two were stopped, the audible pinging of the stolen phone substantiated the officers' suspicion and corroborated the accuracy of Eduardo's descriptions of the first two robbers. His correct identification of the first two perpetrators gives added credence to his ability to identify the third robber.
Other factors tending to support the accuracy of Eduardo's identification of Daniel at the cold show included that it occurred within two hours after the robbery, while the robber's face was still fresh in mind. (Cf. Evid. Code, § 1238.) Eduardo's identification was corroborated by the fact that Stutzman told the police one of the robbers was wearing shorts and long socks. Daniel was not wearing long socks, but he was wearing black shorts with a red stripe when he was arrested. There was no evidence at trial that Eduardo knew Stutzman had told the police that one of the robbers was wearing shorts. The fact that Daniel partially matched Stutzman's description tends to substantiate Eduardo's cold show identification of Daniel.
Daniel was also in the company of Morales when he was arrested, and Morales owned the blue Honda, which we may infer from its warm hood had been driven recently. There is no serious doubt the Honda was the robbers' getaway vehicle, and Morales was known to be the owner of the Honda. Morales was eventually convicted by plea of being an accessory after the fact (§ 32), which suggests the state's theory of the crime was that four men were involved: the three who robbed Eduardo and his friends, and Morales as the getaway driver. The speed with which the robbers were able to escape in the car further suggests there had been someone waiting in the car who took off rapidly after the last of the robbers got into the car.
Given these factors, it was reasonable for the judge to conclude that whoever identified Morales as one of the active participants in the robbery was mistaken and that Eduardo's identification of Daniel as the third robber was more credible. The trial judge, as the finder of fact, was aware that four men had been positively identified at the cold shows and arrested as a result. He nevertheless believed Eduardo's identification of Daniel, which was reasonable and credible, and with corroborating factors, was of solid value. Whether corroboration was required or not, it was present in this case and contributes to our conclusion that substantial evidence supported the court's finding of guilt. Therefore, despite any inconsistencies or reasons to doubt the accuracy of the identification, we find there was substantial evidence to support the juvenile court's finding that Daniel committed the three robberies and order declaring him a ward of the court.
2. The court's reliance on Eduardo's identification did not violate due process
Daniel further argues the court's judgment deprived him of due process because eyewitness identification evidence by its nature is so lacking in probative value that its use as the only evidence to convict him, without corroboration, was insufficient under Jackson v. Virginia. He claims the factors emphasized by the prosecutor as supporting the accuracy of Eduardo's identification of Daniel do not stand up to analysis. Even considered together, he argues, those factors are incapable of persuading a reasonable trier of fact of his guilt beyond a reasonable doubt. Daniel does not challenge the judge's ruling on any particular evidentiary point, but he claims the court erred in finding he committed the robberies because the findings were supported only by Eduardo's identification, which was insufficient, absent extrinsic evidence substantiating his guilt. Particularly, he emphasizes, Eduardo's 95 percent confidence level was unworthy of the court's reliance.
To support his argument, Daniel cites numerous social science studies finding that eyewitness identification is far less reliable than most people—and most jurors—would suppose. Whether an experienced trial judge should be treated as equally misinformed is another matter. The California courts have long acknowledged the potential inaccuracy of eyewitness identification (People v. Cardenas (1982) 31 Cal.3d 897, 908-909 (Cardenas)), and have allowed expert testimony on the subject. (McDonald, supra, 37 Cal.3d at pp. 361-377.) Yet, they have consistently applied standard substantial evidence review to cases involving uncorroborated eyewitness identification, without imposing an express corroboration requirement, both before and after the trial in this case. (People v. Reed (2018) 4 Cal.5th 989, 1005-1007 (Reed); Boyer, supra, 38 Cal.4th at pp. 479-480.) To suggest that every case involving significant eyewitness testimony requires corroboration as a matter of law is to propose a judicial innovation more appropriately left to the Supreme Court. And the Supreme Court is not unaware of the issue.
Justice Goodwin Liu of the California Supreme Court most recently recognized the pitfalls of eyewitness identification in his dissenting opinion in Reed, supra, 4 Cal.5th at pp. 1028-1031 (dis. opn. of Liu, J.). We know, for instance, "mistaken eyewitness identifications have played a role in a substantial number of wrongful convictions and unsolved crimes." (Sánchez, supra, 63 Cal.4th at p. 498 (conc. opn. of Liu, J.).) Indeed, "[m]istaken eyewitness identifications contributed to approximately 71% of the more than 360 wrongful convictions in the United States overturned by post-conviction DNA evidence." (Innocence Project, Eyewitness Identification Reform: Mistaken Identifications are the Leading Factor In Wrongful Convictions, https://www.innocenceproject.org/eyewitness-identification-reform, last accessed Nov. 26, 2019.) Nevertheless, except in the case of unduly suggestive extrajudicial identification, the California Supreme Court has not so far adopted special rules regulating admissibility of eyewitness identification evidence or a separate gauge to measure its sufficiency.
Daniel moved in limine to suppress Eduardo's cold show identification of him as the product of undue suggestiveness. " 'The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.' " (People v. Ochoa (1998) 19 Cal.4th 353, 412.) Daniel's motion to suppress was denied for lack of suggestiveness. No appellate issue is raised on admissibility.
Daniel, in effect, urges adoption of a corroboration requirement for eyewitness identification in conducting substantial evidence review on a claim of insufficiency of the evidence in any judgment resting exclusively or almost exclusively on eyewitness identification testimony. He relies primarily on State v. Henderson (N.J. 2009) 27 A.3d 872 (Henderson), procedure modified in part in State v. Anthony (N.J. 2019) 204 A.3d 229, 233-234, in which the New Jersey Supreme Court adopted a new procedural innovation to address the problem of inaccurate eyewitness identification in light of scientific studies and expanded due process protection under the state Constitution. But Henderson does not stand for Daniel's proposition to impose a corroboration requirement when reviewing a conviction.
Henderson—a suggestive photo line-up case (Henderson, supra, 27 A.3d at pp. 879-882)—addressed the inaccuracy of eyewitness identification and came up with an enhanced pretrial procedure for reducing the risk of wrongful conviction based on erroneous identification. (Id. at pp. 916-926.) Henderson, after reviewing the results of numerous social science studies, concluded: "Without persuasive extrinsic evidence, one cannot know for certain which identifications are accurate and which are false—which are the product of reliable memories and which are distorted by one of a number of factors." (Id. at p. 888.) Consequently, Henderson held defendants in New Jersey can obtain a pretrial hearing on the admissibility of eyewitness evidence if they can show some evidence of suggestiveness that could lead to mistaken identification. (Id. at pp. 919-920.) If the defendant makes that showing, then the state must offer proof of the reliability of the identification, with the defendant carrying the ultimate burden to prove "a very substantial likelihood of irreparable misidentification." (Id. at p. 920.) If the defendant meets the burden, then the evidence must be suppressed. (Ibid.)
Because Daniel points to no specific erroneous ruling on an evidentiary point, the only question before us is that of sufficiency of the evidence. Even assuming a corroboration requirement could or should be adopted by this court, we have already found corroboration sufficient to satisfy us that the identification was reliable as part of our substantial evidence review. (See part II.A.1, ante.) In effect, that is a conclusion that the convictions did not offend due process. Therefore, we may affirm without reaching any further conclusion whether corroboration should be expressly required in other cases. If so, the impetus should come from the Supreme Court.
It appears Justice Liu is open to considering procedural changes to minimize the risk of erroneous conviction due to inaccurate eyewitness identification but is inclined to address the problem through restrictions on admissibility. "The problematic nature of eyewitness evidence has led some state high courts to assign trial courts a stronger gatekeeping role in the admission of such evidence." (Reed, supra, 4 Cal.5th at p. 1029 (dis. opn. of Liu, J.).) In addition to Henderson, supra, 27 A.3d 872, Justice Liu cited State v. Lawson (Ore. 2012) 291 P.3d 673, 693, as another case in which a state supreme court had adopted procedures designed to minimize the risk of inaccurate eyewitness identification by limiting admissibility of such evidence, with the prosecution retaining the burden of proof. (Cf. Young v. State (Alaska 2016) 374 P.3d 395, 426-427 [adopting new rule for testing reliability of eyewitness identification under Alaska Constitution when affected by suggestive procedure]; State v. Harris (Conn. 2018) 191 A.3d 119, 143-144 [adopting Henderson approach for suggestive identifications under Connecticut Constitution].)
Under Lawson, "[w]hen a defendant has filed a pretrial motion to exclude eyewitness evidence, the trial court must determine by a preponderance of the evidence whether the eyewitness identification was 'rationally based' on the witness's perceptions. [Citation.] The court may consider evidence of close observation of the suspect's face supporting such a determination. ([State v. Lawson, supra, 291 P.3d at p. 693].) On the other hand, observations of nonfacial features like race, height, weight, clothing, or hair color 'generally lack the level of distinction necessary to permit the witness to identify a specific person as the person whom the witness saw.' (Ibid.) If the state meets this threshold but the defendant introduces competing evidence to undermine the reliability of the identification, then the state 'must establish by a preponderance of the evidence that the identification was based on a permissible basis rather than an impermissible one, such as suggestive police procedures.' (Ibid.)" (Reed, supra, 4 Cal.5th at p. 1030 (dis. opn. of Liu, J.).)
Using admissibility to address this issue does seem like a more fine-grained filter than sufficiency-of-the-evidence review. As Justice Liu observed, the "limited nature of sufficiency-of-the-evidence review is poorly suited to detect or prevent miscarriages of justice that may result from erroneous eyewitness identification." (Reed, supra, 4 Cal.5th at p. 1028 (dis. opn. of Liu, J.).) Hence, he suggested, "the problem needs to be addressed upstream." (Id. at p. 1029 (dis. opn. of Liu, J.).) "The time has come for the Legislature, the Judicial Council, or this court to develop principles that guide the admissibility of eyewitness identification evidence." (Id. at p. 1031 (dis. opn. of Liu, J.).) Despite Justice Liu's suggestion, none of those bodies has introduced changes to established procedure. And with Justice Liu's call for an "upstream" solution, it is certainly not clear the Supreme Court will authorize a downstream remedy by expressly requiring corroboration as part of substantial evidence review. We are bound by Supreme Court precedent (e.g., Boyer, supra, 38 Cal.4th at pp. 479-480) employing the substantial evidence standard of review in such cases without elaboration. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Restriction on Cross-Examination
Daniel's second contention on appeal is that his attorney's cross-examination of Eduardo was so unduly restricted as to constitute a violation of his Sixth Amendment right to confront the witnesses against him. (U.S. Const., Amend. VI.) " '[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citation.]' [Citations.] The confrontation clause allows 'trial judges . . . wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant.' [Citation.] In other words, a trial court may restrict cross-examination on the basis of the well-established principles of Evidence Code section 352, i.e., [weighing] probative value versus undue prejudice. [Citation.] There is no Sixth Amendment violation at all unless the prohibited cross-examination might reasonably have produced a significantly different impression of credibility." (People v. King (2010) 183 Cal.App.4th 1281, 1314-1315, fn. omitted; see People v. Hillhouse (2002) 27 Cal.4th 469, 494; People v. Brown (2003) 31 Cal.4th 518, 545-546.)
We have reviewed the attempted cross-examination by Daniel's counsel and the objections that were sustained. Objections were sustained to questions incorporating facts not in evidence, calling for hearsay, and under Evidence Code section 352. Daniel does not point to any specific question as to which an objection was erroneously sustained.
It is generally recognized that adherence to state rules of evidence does not violate the federal Constitution. "The routine and proper application of state evidentiary law does not impinge on a defendant's due process rights." (People v. Riccardi (2012) 54 Cal.4th 758, 809, disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) In addition, the confrontation clause does not "prevent[] a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679, italics added; Sánchez, supra, 63 Cal. 4th at p. 450 ["not every restriction on a defendant's cross-examination violates the Constitution"].) Likewise, " 'reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value . . . generally does not contravene a defendant's constitutional rights to confrontation and cross-examination.' " (People v. Ardoin (2011) 196 Cal.App.4th 102, 122, disapproved on other grounds in People v. Dalton (2019) 7 Cal.5th 166, 214.)
"Ordinarily a criminal defendant's attempt 'to inflate garden-variety evidentiary questions into constitutional ones [will prove] unpersuasive.' " (People v. Thornton (2007) 41 Cal.4th 391, 443.) "Our ordinary rules of evidence gave rise to no constitutional violation . . . when the court excluded inadmissible hearsay evidence of alleged third party culpability. (People v. Cudjo (1993) 6 Cal.4th 585, 610-611.)" (People v. Williams (2016) 1 Cal.5th 1166, 1190.)
Rulings on evidentiary objections are reviewed for abuse of discretion. (E.g., People v. Elliott (2012) 53 Cal.4th 535, 577.) We see no abuse of discretion here. The prosecutor's objections appear to have been well-taken and the court's rulings reasonable. Nor do we see a meaningful curtailment of cross-examination calling for admissible evidence such that we could even begin to recognize it as a Sixth Amendment violation. The right of confrontation does not entitle a defendant to violate the rules of evidence. There was no constitutional violation.
C. The Court's Consultation of Unmodified CALCRIM No. 315
1. The issue has been forfeited
Finally, Daniel argues the court erred in consulting an unmodified version of CALCRIM No. 315 for legal guidance in evaluating Eduardo's identification of Daniel because that instruction includes the eyewitness's level of certainty as a factor for the finder of fact to consider in crediting or rejecting the eyewitness's testimony. He argues at length that eyewitness testimony in general is unreliable, and explicitly that an eyewitness's level of certainty in the identification bears no relationship to its accuracy. We do not overlook that it was defense counsel who asked the court to consult CALCRIM No. 315, without requesting modification. It was also defense counsel who elicited from Eduardo the testimony that he was "95" percent confident of his identification of Daniel.
The use of empirical studies to show the unreliability of eyewitness identification, while compelling, was not employed at trial, and it is pitched to the wrong court now. Defense counsel made no request for modification of CALCRIM No. 315 to omit the certainty factor. This was a bench trial, not a jury trial, so the actual modification of a jury instruction seems unnecessary and unduly technical. It would have been enough for defense counsel to argue to the judge that the degree of certainty expressed by an eyewitness bears no correlation to the accuracy of the identification, citing California case law to support that argument. (See Sánchez, supra, 63 Cal.4th at pp. 494-498 (conc. opn. of Liu, J.); McDonald, supra, 37 Cal.3d at pp. 361-377; Cardenas, supra, 31 Cal.3d at pp. 908-909.) Counsel did not even do that much. The issue Daniel attempts to raise on appeal was forfeited. (See, e.g., People v. Ward (2005) 36 Cal.4th 186, 213-214; People v. Mackey (2015) 233 Cal.App.4th 32, 106.)
2. The judge in a bench trial is presumed to know eyewitness expressions of certainty correlate poorly with accuracy of identification
Even though defense counsel did not press upon the court the point that certainty correlates poorly with accuracy in the context of eyewitness identification, we presume a trial judge knows the governing case law. (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) ["As an aspect of the presumption that judicial duty is properly performed, we presume, nonetheless, in other proceedings that the court knows and applies the correct statutory and case law [citation], and is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decisionmaking process."]; People v. Martin (2005) 127 Cal.App.4th 970, 977, disapproved on other grounds in People v. Achrem (2013) 213 Cal.App.4th 153, 156 [Court of Appeal presumed trial court considered probation report for proper, not improper, purposes].) McDonald had been on the books for more than three decades, and Sánchez, a widely read case, had only recently brought the eyewitness identification issue again to the fore. Both cases pointed out the weakness of the correlation between certainty and accuracy. (Sánchez, supra, 63 Cal.4th at pp. 462-463 & 495-498 (conc. opn. of Liu, J.); McDonald, supra, 37 Cal.3d at pp. 363-365.) We would be astonished if an experienced jurist like the one who conducted this trial was unfamiliar with the fact that eyewitness testimony is often unreliable and that certainty does not guarantee accuracy. He undoubtedly discounted the persuasive value of the 95 percent estimate accordingly.
Nor do we think the outcome of the trial was affected by the inclusion of the certainty factor in CALCRIM No. 315 in this bench trial. Far more compelling than Eduardo's professed certainty was the corroborating evidence that Daniel's clothing partially matched Stutzman's description of the third robber given at the crime scene, as well as Eduardo's more detailed recollection of Daniel's clothing at trial before he was shown a photograph of Daniel from the night of the crime. That Daniel was found in Morales's company shortly after the robbery further tends to confirm the accuracy of Eduardo's identification. We presume the trial judge, as a jurist, knew the shortcomings of eyewitness identification testimony, and, as a factfinder, took that into account when he weighed the evidence and decided on Daniel's guilt. Our role does not include reweighing that evidence.
3. Ineffective assistance of counsel
As a backup argument, Daniel suggests his attorney was ineffective under Strickland v. Washington (1984) 466 U.S. 668 for failing to request modification of CALCRIM No. 315. He points out that a similar issue is before the California Supreme Court in People v. Lemcke, supra, No. S250108 and tries to bring his case within its ambit. (See fn. 8, ante.) He fails to acknowledge, however, one consequence to his ineffective assistance of counsel claim. At the time of trial, Sánchez was relatively recent Supreme Court authority which had declined to reconsider the propriety of including the "certainty" factor in CALCRIM No. 315. (Sánchez, supra, 63 Cal.4th at pp. 461-462, 494-498 (conc. opn. of Liu, J.).) Earlier cases had explicitly approved its inclusion in comparable instructions. (People v. Wright (1988) 45 Cal.3d 1126, 1144, 1166; People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232.)
Daniel cannot demonstrate that his attorney's performance fell below professional norms. His conduct was consistent with Supreme Court authority, especially in the context of a bench trial. At worst it might be suggested that he missed a cutting-edge argument that would have made an interesting appellate issue downstream. It cannot be said that any reasonable attorney would have requested modification of CALCRIM No. 315, given the unsettled nature of the point on which counsel is now accused of rendering ineffective assistance. To request such modification in a bench trial before an experienced trial judge would be especially unnecessary.
III. DISPOSITION
The juvenile court's orders of June 8, 2018 and July 20, 2018 are affirmed.
/s/_________
STREETER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.