Opinion
G040062.
4-24-2009
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA ALLEN LOY, Defendant and Appellant.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Joshua Allen Loy appeals from his conviction on one count of committing a forcible lewd and lascivious act on a child under age 14 (Pen. Code, § 288, subd. (b)(1)), and one count of attempting to commit a lewd and lascivious act on a child under age 14 (§§ 664, 288, subd. (a)). He contends the trial court erred by excluding expert testimony concerning eyewitness identification and various pattern jury instructions that were given impermissibly lessened the prosecutions burden of proof. We reject his contentions and affirm the judgment.
All further statutory references are to the Penal Code.
FACTS
Count 1: October 4, 2006—L.H.
On October 4, 2006, L.H. was a 13-year-old student at Home Street Middle School in Bishop, California. As L.H. walked to school that morning, going past the high school, Loy grabbed her from behind and fondled her breasts and vaginal area. L.H. screamed for help, and Loy let her go and ran off.
L.H. got a clear look at Loys face before he ran away. She had seen him just the day before. L.H. had been walking past the high school gym on her way to school that morning, and she saw Loy watching her. She had walked within three feet of Loy.
After he released L.H., Loy ran north on Hobson Street. L.H., upset and crying, flagged down Bishop Police Officer Richard Beall and told him what had happened. At the time, L.H. described her assailant as a White male, with blond curly hair, wearing black pants and a white shirt.
Beall and Detective David Jepson later took L.H. to the Diamond Trailer Park, where Loy was being detained. Jepson advised L.H. the person being detained might or might not be her attacker, and she must keep an open mind and take a close look before she identified the person. L.H. identified Loy as the attacker and said she was certain about her identification.
A.S., a 13-year-old student at Home Street Middle School, had also seen Loy in the area at the time of the attack on L.H. A.S. lived across the street from the high school gym. The day before the attack on L.H., A.S. was walking behind her on the way to school. As the girls neared the corner of the high school gym, A.S. saw Loy, who had been on the other side of the street, come across the street and start jogging slowly alongside L.H. A.S. described Loy as having brownish hair, wearing a white shirt and dark blue pants. Loys presence made A.S. feel very uncomfortable, so she watched him.
The next morning, before L.H. was assaulted, A.S. saw Loy jog past her house at 8:06 a.m. A.S. was certain Loy was the man she saw that morning. He was wearing the same clothes as the day before, but this time he also wore a dark blue cap. The next day, A.S.s mother showed her Loys picture in the paper and she immediately recognized him as the man she had seen.
When a defense investigator later showed A.S. a photo lineup that included a picture of Loy, she said one of the photographs looked sort of like the man she had seen, but younger and with less hair. The photo lineup included a Department of Motor Vehicles (DMV) photograph of Loy from April 2003. Loy was 21 years old at the time of the current offense in October 2006. When the defense investigator showed L.H. the photo lineup, she could not identify Loys picture, but in court she had no doubt Loy was the man who grabbed her.
Beall testified that when stopped by L.H., she said her attacker had headed north on Hobson Street. He drove in that direction and saw a man, wearing a white shirt and dark pants (not black, but very dark blue nearing black) about two blocks away walking north on Hobson Street and there were no other adults in the area. Beall gave a description to his dispatcher, it was broadcast, and another officer, Officer Brian Rossy, immediately turned his patrol car onto Hobson Street. The man Beall saw was out of his sight for about 30 seconds before Rossy arrived.
Rossy testified that as he turned onto Hobson Street, in response to the dispatch, he saw Loy who matched the description he had heard. There were no other adults in the area matching Loys description. When Loy saw Rossy, he immediately began running. Rossy was yelling at Loy to stop, but Loy turned into the Diamond Trailer Park. Rossy caught up with Loy and ordered him repeatedly to stop, but Loy did not. Rossy warned he would "tase" Loy if he did not stop. Loy stopped and lay on the ground, but would not comply with Rossys command that he put his hands behind his back, so Rossy "tased" him. Loy was wearing a white T-shirt, a cap, dark blue cargo pants with another pair of sweat pants underneath, and black boots.
When Jepson later interviewed Loy, Loy said he worked nights in Mammoth Lakes and lived in Big Pine. He had driven his car to the K-Mart in Bishop on October 3, where a coworker picked him up and drove him to work in Mammoth. When asked why he was in the area of the school, Loy said he was out jogging after getting off work that morning. Concerned Loy might have been planning on kidnapping L.H., Jepson asked where his car was. The car was parked across the street from the trailer park on the route Rossy had pursued Loy.
Count 2: Late September 2006—C.F.
C.F. was a 13-year-old student at Home Street Middle School. One morning between September 25 and 28, 2006, she was walking to school. Loy walked past her and she saw his face clearly. A little later, as she was walking, someone came up behind her and grabbed her buttocks. She at first accused a boy who was walking in her group, but as she turned around Loy was right behind her. At first Loys expression was blank and then he began smiling and took off running. C.F. described Loy as a White male, not that old, with light colored hair, wearing a grey T-shirt and khaki jeans. When she saw Loys picture in the newspaper, she immediately recognized him as the man who had grabbed her. Later, when the defense investigator showed her the photo lineup that included Loys DMV photograph, she did not pick his picture.
Count 3: October 3, 2006—B.R.
On the morning of October 3, 2006, 12-year-old B.R. was walking to Home Street Middle School with her 11-year-old sister and her cousin. Loy was following them for several blocks, which included the three girls route past a local health club.
B.R. observed Loy repeatedly during the walk. He sped up, causing B.R. to walk faster. As they neared the high school gym, Loy came up behind B.R. and grabbed her hand, which was crossed over her chest holding the strap of her backpack. B.R. turned around and saw Loys face very clearly—he was smiling. She hit him in the stomach, and he let go and took off running.
B.R. described Loy as wearing a white T-shirt, no hat, with light brown wavy hair. A few days later, B.R. was telling a friend about the experience. The friend showed B.R. a picture of Loy in the newspaper, and B.R. immediately recognized him as the man who tried to grab her.
B.R.s sister confirmed that at various locations on their walk to school on October 3, the girls saw Loy several times, and he had tried to grab B.R. The sister was positive about her identification of Loy.
A police officer happened to be working out in the health club on the morning of October 3. The officer testified he was looking through large plate glass windows facing the street and saw three young Hispanic girls walk by with Loy following them. Loy was dressed in a white T-shirt, blue pants, and was wearing a cap.
Defense
Loys girlfriend, Christina Miller, with whom he lived in Big Pine, and with whom he had a young child, testified Loy worked a 6 p.m. to 6 a.m. shift in Mammoth, and was always home by 8 a.m. Miller had told the defense private investigator Loy always arrived home from work between 7:55 a.m. and 8:10 a.m. Miller testified Loy always wore blue cargo pants, often with sweat pants underneath, a white shirt, with a white T-shirt underneath to work. He did not wear or own a pair of khaki colored pants. She never saw Loy jogging in September or October 2006.
Miller testified that on October 3 (the date of the B.R. incident), Loy got home between 7:45 and 8 a.m. His car broke down in their driveway. Loy remained at home with Miller all morning.
Miller did not see Loy on the morning of October 4 (the date of the L.H. incident), but thought his car had again broken down outside of town. Later that day, she found Loys car parked by the trailer park, where it was being searched by police officers.
Loys coworker testified that on the morning of October 4, he had given Loy a ride from work to Loys car, which was parked in the K-Mart parking lot. He dropped him off at about 6:40 a.m. Loy was wearing a white shirt, blue cargo pants, and maybe a hat. At the time, Loy had lighter brown (more like dirty blond) hair, than in court.
The defense investigator testified that approximately six months after the incidents, he showed L.H., B.R., and C.F. photo lineups that included a DMV picture of Loy, and none of the girls picked Loy from the lineup. On cross-examination, he conceded the photograph he included of Loy in the lineup did not depict what he looked like in October 2006.
Procedure
Loy was charged with: Committing a forcible lewd and lascivious act on a child under age 14 (§ 288, subd. (b)(1)) (count 1—L.H.); committing a lewd and lascivious act on a child under age 14 (§ 288, subd. (a)) (count 2—C.F.); and attempting to commit a lewd and lascivious act on a child under age 14 (§§ 664, 288, subd. (a)) (count 3—B.R.). A jury found him guilty on counts 1 and 3; a mistrial was declared as to count 2. Loy was sentenced to six years in prison on count 1, with a concurrent six-month term on count 3.
DISCUSSION
1. Exclusion of Expert Testimony About Eyewitness Identifications
Loy contends the trial court erred by not permitting him to present an expert witness to testify about psychological factors that may undermine the accuracy of an eyewitness identification. Furthermore, he contends the error is of constitutional dimension because it deprived him of his right to present his defense. We disagree.
The decision to admit or exclude expert testimony on the subject of the reliability of eyewitness identification "remains primarily a matter within the trial courts discretion" and our Supreme Court has emphasized such evidence "will not often be needed[.]" (People v. McDonald (1984) 37 Cal.3d 351, 377 (McDonald), overruled on another ground by People v. Mendoza (2000) 23 Cal.4th 896, 914.)
McDonald held excluding the testimony constitutes error only when eyewitness identification is a key element of the prosecutions case and is not substantially corroborated by other evidence. (McDonald, supra, 37 Cal.3d at p. 377.) "In McDonald, no evidence linked the defendant to the crime, apart from eyewitness identification. The eyewitness testimony was equivocal; several witnesses testified that their view of the crime was partially blocked and obscured by rush-hour traffic; one eyewitness asserted that the defendant was definitely not the killer. The defendant also had a strong alibi defense. [The Supreme Court] concluded that the eyewitness identifications were not corroborated by evidence that would lend them independent reliability." (People v. Sanders (1995) 11 Cal.4th 475, 509 (Sanders).)
In Sanders, "eyewitness testimony was a key element of the prosecutions case," but "unlike McDonald, [it] was not the only evidence linking the defendant to the crime." (Sanders, supra, 11 Cal.4th at p. 509.) The court noted it is not an abuse of discretion to exclude the proposed expert testimony when substantial corroborating facts are present. (Ibid.; accord, People v. Walker (1988) 47 Cal.3d 605, 628 ["ample circumstantial evidence linked defendant to the crimes and gave the identifications an independent source of reliability"]; People v. Plasencia (1985) 168 Cal.App.3d 546, 554-555, fn. omitted ["prosecutions case was not premised solely on eyewitness testimony"].)
Here, there was sufficient evidence corroborating the various witness identifications. We begin with the attack on L.H. on October 4. L.H. and A.S. were unequivocal about their identifications of Loy as the man who had been lurking about in the area of the school the day before, and who was seen by both girls just prior to the assault on L.H. The physical description L.H. gave Beall at the scene was consistent with the man Beall immediately saw walking in the very direction L.H. indicated, and there were no other adults in the area. L.H.s physical description was also consistent with Loys appearance when he was apprehended. When Rossy approached Loy in his patrol car, Loy took off running towards where his car was parked and then into a nearby trailer park. Loy disregarded Rossys repeated demands to stop. L.H. identified Loy at the trailer park and was positive of her identification then and at trial. That both L.H. and A.S. were either equivocal about or unable to identify Loy in the photo lineup shown to them by the defense investigator is not particularly troubling given that the three-and-one-half-year-old DMV picture was of a teenaged, shaven headed Loy, and the investigator agreed it did not depict his appearance at the time of the attacks.
Additionally, Loy had a very weak explanation for his presence in the area of the school on the morning of October 4. In his appellate brief, he states his presence was understandable because he lived near the area and typically left his car parked nearby to catch a ride to work in Mammoth. But the evidence at trial was that Loy lived with his girlfriend in a town south of Bishop (Big Pine), had been dropped off at his car in a different location (the K-Mart parking lot) almost an hour and a half before the attack on L.H. occurred. Loy claimed he was out jogging, but he was not wearing jogging clothes. Rather he was still in his usual work clothes, wearing boots, and his girlfriend denied he had been in the habit of jogging recently.
Turning to the attack on B.R. occurring the day before the attack on L.H., October 3, again there was corroboration. B.R. and her sister both unequivocally identified Loy as the man who followed them as they walked to school that morning. A police officer corroborated their testimony, testifying he saw Loy following the girls that morning as well. And L.H. and A.S. independently saw Loy lurking around the area that same morning. All witnesses described his physical appearance and clothes similarly—again, he was wearing his work clothes. Although Loy had an alibi for that morning, it was not overwhelming. His girlfriend claimed he had arrived home in Big Pine by 8:00 a.m., at the same time five witnesses independently saw him jogging around a middle school in Bishop in his work uniform. "Although none of these items points unerringly towards defendants guilt, they constitute links in the chain of evidence against him and thus provide some corroboration of [the witnesss] identification. . . . " (People v. Sanders (1990) 51 Cal.3d 471, 506.)
We fail to see what the proffered expert testimony would have added to the jurys understanding of how to view eyewitness identification evidence. Loy wanted the expert testimony admitted to provide the jury with guidance on psychological factors that can cause memory to be influenced. But the factors were explored fully in cross-examination of the witnesses and in argument, and Loy has not shown the reliability of the witnesses identifications was out of the common experience of the jurors. And, we note the jury was instructed with Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 315 concerning the factors that could impact their assessment of the eyewitness identifications.
As given, CALCRIM No. 315 provided that the jurors had "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, you may, but are not limited to 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 witnesss 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? [¶] Were there any other circumstances affecting the witnesss ability to make an accurate identification? Was the witness able to identify the defendant in a photographic or physical lineup? [¶] 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 is not guilty."
Nor can we agree exclusion of the expert testimony deprived Loy the opportunity to present his defense. "A trial court must be careful not to permit its proper concern with the expeditious conduct of the trial to lead to an improper acceleration of the proceedings. [Citation.] Nonetheless, we do not agree that the rulings or comments of the trial court . . . demonstrate that the trial court improperly conducted the proceedings by precluding the development of evidence favorable to the defense. [¶] In general, the `"[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendants right to present a defense." [Citations.] [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 998.)
2. Jury Instructions
Loy contends CALCRIM Nos. 223 (direct and circumstantial evidence), 226 (credibility of witnesses), and 302 (evaluating conflicting evidence) are erroneous, as they lessen the prosecutions burden of establishing his guilt beyond a reasonable doubt. We reject his contentions.
The Attorney General argues Loy has waived his argument because he did not object to the instructions below. We have discretion to consider the arguments nonetheless (§ 1259), and do so to stave off the inevitable ineffective assistance of counsel claim. (People v. Osband (1996) 13 Cal.4th 622, 693.)
A. CALCRIM No. 3.02
Loy challenges CALCRIM No. 302 (evaluating conflicting evidence) on several grounds. CALCRIM No. 302 reads: "If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point."
Loys contentions regarding CALCRIM No. 302 have been rejected by the courts in People v. Ibarra (2007) 156 Cal.App.4th 1174 (Ibarra); People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson); and People v. Reyes (2007) 151 Cal.App.4th 1491 (Reyes ). We adopt the reasoning of those opinions and only summarize Loys argument.
Loy complains that by instructing the jury it must decide "what evidence, if any, to believe," CALCRIM No. 302 improperly insinuates the defense evidence must be believed to acquit. The instruction does not give any such command, and the argument ignores the other instructions that emphatically told the jury a criminal defendant is presumed innocent and the prosecution has the burden of proof including CALCRIM Nos. 220, 315, and 355.
Loy contends that by instructing the jury not to disregard the testimony of a witness without a reason, CALCRIM No. 302 improperly creates the presumption all witnesses are deemed to be truthful, and when applied to prosecution witnesses, the instruction undermines the presumption of innocence by telling the jury it must accept the testimony unless the defendant disproves it. It does not. The jury is clearly instructed by CALCRIM No. 226 that it must decide the credibility of witnesses. "CALCRIM No. 302 does not create a presumption of credibility. It merely cautions the jurors not to disregard testimony on a whim." (Anderson, supra, 152 Cal.App.4th at p. 939.)
Loy contends CALCRIM No. 302 conflicts with the presumption of innocence by instructing the jury not to "favor one side over the other." "The instruction does not tell the jury not to favor one side over the other; it cautions against disregarding testimony because of a desire to favor one side over the other." (Anderson, supra, 152 Cal.App.4th at p. 939; Ibarra, supra, 156 Cal.App.4th at p. 1191.)
Loy argues CALCRIM No. 302 suggests disbelief of defense witnesses requires prosecution witnesses be believed and thus requires the jury to choose between the prosecution and defense witnesses. "The instruction says nothing about choosing between prosecution and defense witnesses. It merely states the common sense notion that the number of witnesses who have given testimony on a particular point is not the test for the truth of that point. It does no more. The jury remains free to choose the witness or witnesses it believes and what part of a witnesss testimony it finds believable." (Anderson, supra, 152 Cal.App.4th at p. 940; Ibarra, supra, 156 Cal.App.4th at p. 1191.)
Loy also contends CALCRIM No. 302 improperly focuses the jury on the side with more evidence, improperly inviting it to consider the number of witnesses who testified for each side as a factor in determining which version of events to credit. To the contrary, the instruction advised "the number of witnesses, by itself, is not the determining factor." (Reyes, supra, 151 Cal.App.4th at p. 1497.)
B. CALCRIM No. 223
CALCRIM No. 223 defines direct and circumstantial evidence and explains the difference between the two. The portion of CALCRIM No. 223 to which Loy objects is as follows: "Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence." (Italics added.)
In his opening brief, Loy erroneously identifies the text of CALCRIM No. 223 as CALCRIM No. 226, and vice versa.
Loy complains the instruction suggests to the jury the defense has a duty to present evidence to disprove the charges. His argument ignores the language of CALCRIM No. 223, which neither refers to a defendants burden of proof nor states a defendant must affirmatively disprove an element of the offense to obtain an acquittal. "Reasonably read, [CALCRIM No. 223] cautions only that neither direct nor circumstantial evidence should be accorded greater weight simply because it is direct or circumstantial evidence." (Anderson, supra, 152 Cal.App.4th at p. 930.) There was no misstatement of law or error in the instruction.
C. CALCRIM No. 226
The jury was given CALCRIM No. 226, which provides guidance for assessing witness credibility. It reads: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witnesss gender, race, religion, or national origin. You may believe all, part, or none of the witnesss testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." (Italics added.) The instruction goes on to list factors the jury can consider in determining the credibility of the witnesses including, "Did other evidence prove or disprove any fact about which the witness testified?" (Italics added.)
Loy contends the above instruction insinuates he was required to disprove some element of the offense. We do not believe the jury would interpret the instruction as suggested. The instruction merely advised the jurors how to assess witness credibility. In addition, as already explained, the jury was fully instructed on the burden of proof and told that neither party must call all witnesses or produce all physical evidence. These instructions clearly advised the jury they could not convict defendant unless the People proved his guilt beyond a reasonable doubt. There was no error in giving CALCRIM No. 226.
D. Ambiguous as Applied
Finally, Loy argues the above-challenged instructions, even if valid, are ambiguous and there is a reasonable likelihood they were applied in a way that violated the Constitution. We disagree.
"`When reviewing [a federal constitutional claim concerning] a supposedly ambiguous [i.e., potentially misleading] jury instruction, "`we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution." [Citation.]" (People v. Ayala (2000) 24 Cal.4th 243, 289.) "In determining the correctness of jury instructions, we consider the instructions as a whole." (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) An instruction can be found to be ambiguous or misleading only if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We presume that jurors are intelligent and capable of understanding and correlating all jury instructions given. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.)
There is no reasonable likelihood the jury applied the challenged instructions so as to violate Loys constitutional rights. CALCRIM No. 223 merely defined the two types of evidence a party could present at trial, i.e., direct and circumstantial, and explained the differences between the two. Additionally, the same paragraph containing the challenged language in CALCRIM No. 223 tells the jury to consider whether a fact has been proved "based on all the evidence." CALCRIM No. 226 was neutral, as explained above, and informed the jury to consider whether or not other evidence proved or disproved a witnesss testimony. CALCRIM No. 302 includes the words "if any" immediately following the challenged portion. When the subject phrase is taken as a whole, it plainly informed the jurors they could believe all the evidence, part of it, or none of it. We see no reasonable likelihood of the jury misunderstanding the challenged instructions in the manner Loy suggests.
Again, the trial court in no way insinuated Loy had the burden to prove his innocence. The jury was instructed pursuant to CALCRIM No. 220 (reasonable doubt), which told the jury that if the prosecution presented no, or insufficient, evidence it had not met its burden and Loy was entitled to an acquittal. The jury was given CALCRIM No. 300, which stated neither side was required to call all witnesses who might have information about the case or to present all available evidence. And it was given other instructions that when reviewed as a whole told the jury the People had the burden of proof on every element of the offense beyond a reasonable doubt. (CALCRIM Nos. 224, 315 & 355.) We reject Loys claims with regard to the jury instructions.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.