Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. NA067642, Gary J. Ferrari, Judge.
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Melchor Juarez was convicted by jury of the murder of Pedro Oliverez (Pen. Code, § 187, subd. (a)). The jury found true the allegation that he caused the death with a firearm (§ 12022.53, subd. (d)). The trial court sentenced defendant to state prison for an aggregate term of 40 years.
All further references are to the Penal Code.
Defendant contends he “was prejudiced by the rendition of CALJIC (5th Ed.) No. 2.92 because the instruction erroneously suggests to jurors that they may consider a witness’[s] confidence in his or her identification, as expressed [by the witness] at trial, to be a reliable indicat[or] of its accuracy.” We reject defendant’s contention and hold that the jury was properly instructed with CALJIC No. 2.92, and, even if the jury should not have been so instructed, any resulting error was harmless.
FACTS
Prosecution
Lalaini Ortiz (Ortiz) testified that, on October 10, 2004, she and her friend, Art Magana (Magana), were on their bicycles outside of Dino’s Bar when they saw three men. Only one man was wearing a black trench coat. The man in the black trench coat raised his gun, fired it six times, and then turned toward Ortiz and Magana. The man got into a white car, either a Toyota Celica or a Honda, and drove away. Ortiz ran to a phone booth to call 911. On August 12, 2005, Ortiz identified the shooter in a six-pack photographic lineup. She testified that she was very confident that she had identified the shooter, explaining in court, “I couldn’t forget the eyes.” Ortiz identified defendant in court as the man in the black trench coat.
Alfonso Godoy (Godoy) testified that he had been working at Dino’s Bar as a security guard for about one month when the shooting occurred. Godoy stated in court that he was afraid to do so, but then he identified defendant as the shooter.
Roberto Carrillo (Carrillo) testified that he was at Dino’s Bar with Pedro Oliverez (Oliverez), whom he had known for six or seven years. When Carrillo wanted to leave, he began to search for Oliverez, eventually finding him in the bathroom. Oliverez was arguing with a man in a black trench coat. The man had a tattoo on his left hand. Carrillo did not see any other person in the bar wearing a black trench coat.
Jose Barillas (Barillas) testified that he was inside the bar when the shooting occurred, but he had seen both Oliverez and a man in a long coat walk outside. After Oliverez stumbled back into the bar, Barillas walked outside and saw the man in the coat walk over to a car and put a gun on the car seat. When he was shown the six-pack photographic lineup, Barillas wrote “segura” in Spanish by defendant’s photograph. In court, Barillas identified defendant as the man in the long coat.
Oliverez died from four gunshot wounds to the body, any of which would have been fatal. The shots were from front to back, at a downward angle.
Defense
Hilberto Reyes (Reyes) testified that he was playing pool at Dino’s Bar when he heard the shots being fired outside the bar; he saw defendant inside the bar, standing by the juke box, at the time that the shots were fired. The man who was wearing the trench coat was not defendant; the trench-coated man, “tall and well built,” was taller than defendant. Reyes went on to testify that he had known defendant for two years. Reyes saw the man who had argued with Oliverez in the bathroom; that man was not defendant. Reyes admitted that, on August 16, 2005, when he had been shown a photographic six-pack and asked to identify regulars at Dino’s Bar, he had not selected defendant’s photograph.
Martin Hernandez (Hernandez), the owner of Dino’s Bar, testified that he has known defendant as a bar regular for six or seven years. Hernandez had hired defendant to paint his house and to paint the bar. Defendant was not the man in the black trench coat.
Defendant testified on his own behalf. Defendant testified that he was with Hernandez when he heard Oliverez arguing with someone in the bathroom. Oliverez came out of the bathroom with a tall man who was wearing a black trench coat. Oliverez spoke to defendant and Hernandez and then walked away.
Defendant played music and talked to Hernandez for about an hour. As he went to the jukebox to play some music, he heard four or five gunshots. Oliverez ran into the bar and fell to the floor. Defendant saw blood on the back of Oliverez’s shirt. Defendant was scared and ran from the bar. Defendant did not shoot Oliverez.
Rebuttal
Jose Chavez (Chavez) testified that he went to Dino’s Bar with several people, including his co-worker, Oliverez. He saw a pony-tailed, tall man in a knee-length, black trench coat in the bar. On August 12, 2005, Chavez identified defendant’s photograph in a six-pack as the man in the black trench coat. Chavez stated that it took him only ten seconds to identify the man.
DISCUSSION
Without objection from defendant’s trial counsel, the trial court instructed the jury with a modified version of CALJIC No. 2.92: “Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including, but not limited to, any of the following: [¶] The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; [¶] The stress, if any, to which the witness was subjected at the time of the observation; [¶] The witness’ ability, following the observation, to provide a description of the perpetrator of the act; [¶] The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness; [¶] The cross-racial or ethnic nature of the identification; [¶] Evidence relating to the witness’ ability to identify other alleged perpetrators of the criminal act; [¶] Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup; [¶] The period of time between the alleged criminal act and the witness’ identification; [¶] Whether the witness had prior contacts with the alleged perpetrator; [¶] The extent to which the witness is either certain or uncertain of the identification; [¶] Whether the witness’ identification is in fact the product of his/her own recollection; and [¶] Any other evidence relating to the witness’ ability to make an identification.” (Italics added.)
Defendant challenges that the portion of CALJIC No. 2.92 which instructs the jury to weigh the extent to which the witness is either certain or uncertain of the identification. Defendant asserts that a witness’s level of certainty is not scientifically correlated with accuracy and that the language “reinforces and exploits the common lay juror misconception about the eyewitness process.” Leaving aside the issue of waiver (defendant having failed to object to the instruction of the jury with CALJIC No. 2.92), we hold that the instruction was proper.
As defendant concedes in his opening brief, the California Supreme Court has already approved CALJIC No. 2.92. In People v. Wright (1988) 45 Cal.3d 1126, 1144, the Supreme Court held: “CALJIC No. 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” The Supreme Court explained that “the listing of factors to be considered by the jury will sufficiently bring to the jury’s attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. The instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness. It should list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative.” (Id. at p. 1143, fn. omitted.)
In People v. Johnson (1992) 3 Cal.4th 1183, 1230-1231, the Supreme Court noted that “CALJIC No. 2.92 normally provides sufficient guidance on the subject of eyewitness identification factors. [Citation.]” The Supreme Court went on to reject the appellant’s contention that the trial court erred in instructing the jury that the extent to which the witness was either certain or uncertain of the identification was a factor to consider in assessing eyewitness testimony. (Id. at p. 1231.)
In People v. Ward (2005) 36 Cal.4th 186, 213, the Supreme Court held that the trial court was not obligated to modify CALJIC No. 2.92 sua sponte regarding a witness’s level of certainty: “Defendant contends the trial court erroneously included the ‘level of certainty’ factor and should have modified CALJIC No. 2.92 by adding ‘(1) when a person makes an out-of-court identification he is more likely to repeat the identification in-court and to do so with a greater level of certainty (whether or not the original identification is accurate) because he will now remember the accused from the prior lineup and his identification has been “validated” by the fact the person whom he identified has been formally accused by the government and is on trial; and, (2) when a witness is asked to make a one-person show-up (identification of the accused) in the court room, the situation is highly suggestive.’ According to defendant, the instruction and its omissions deprived him of his rights under the Eighth and Fourteenth Amendments of the federal Constitution. We find no error.”
Recently, in People v. Sullivan (2007) 151 Cal.App.4th 524, 561, review denied August 29, 2007, the First District rejected a contention that CALJIC No. 2.92 violated defendant’s “‘right to due process, because it reinforced a pervasive misconception and lightened the prosecution’s burden of proof.’”
In any event, the certainty expressed by the eye witnesses is only one factor of many to be considered by the jury in weighing the credibility of those witnesses. Here, the various eyewitnesses had ample opportunity to observe the shooter, both before and after the shooting. They identified the shooter in photographic line-ups. While Ortiz, Barillas, and Chavez expressed certainty as to their identification of defendant as the shooter, defense counsel cross-examined them closely. Accordingly, any error would have been harmless. Under these facts, it is not reasonably probable that defendant would have obtained a more favorable result absent the alleged error.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., Rothschild, J.