Opinion
H047271
06-09-2020
THE PEOPLE, Plaintiff and Respondent, v. JESSE ANTHONY SANCHEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 19CR004707)
I. INTRODUCTION
Defendant Jesse Anthony Sanchez appeals after a jury found him guilty of attempted auto burglary (Pen. Code, §§ 664, 459), misdemeanor battery (§ 242), misdemeanor loitering (§ 647, subd. (h)), and misdemeanor petty theft (§ 484, subd. (a)), and the trial court found defendant had previously been convicted of a strike offense (§ 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, subd. (b)). The court initially sentenced defendant to three years in prison but later struck the prior prison term enhancement pursuant to Senate Bill No. 136 and resentenced defendant to two years.
All further statutory references are to the Penal Code.
Defendant contends the trial court improperly instructed the jury pursuant to CALCRIM No. 315 to consider a witness's level of certainty when evaluating eyewitness identification testimony. Defendant further contends that if this court determines the claim has been forfeited, his counsel was constitutionally ineffective. The Attorney General counters that defendant's claim of instructional error has been forfeited and that defendant has not established that his counsel's performance was deficient or that he suffered prejudice. The Attorney General also claims the case must be remanded for defendant to be sentenced on his misdemeanor convictions.
Based on Senate Bill No. 136, defendant also contended that this court must strike the trial court's finding that defendant had served a prior prison term. Defendant has since conceded that the trial court properly struck the enhancement on January 23, 2020, and augmented the record with a January 23, 2020 minute order establishing that the court struck the enhancement and resentenced defendant to two years in prison. We will therefore consider defendant's claim regarding the prior prison term enhancement withdrawn.
For reasons that we will explain, we will reverse the judgment and remand the matter for the trial court to impose sentence on defendant's misdemeanor convictions.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. March 2, 2019 Attempted Auto Burglary
Bernardino Diaz drove a tractor at Springfield Farms just north of Castroville. He had worked at the farm for about 14 or 15 years.
While working at the farm on March 2, 2019, Diaz saw defendant near Diaz's car. Defendant was about 10 acres away from Diaz. Defendant was alone inside a vehicle with its trunk open, which was parked behind Diaz's car. Diaz whistled at defendant and said, " 'Hey, get out of here, to leave. . . . [T]hose cars are ours.' " Defendant responded, " 'Hey, hey, no. I'm leaving already. Just this. I'm leaving now.' " Diaz saw that defendant had taken a cell phone charger from someone's car.
Defendant had gone through several cars. Defendant was unable to steal anything from Diaz's vehicle because it was locked, but he broke the car's door handles. Diaz had seen defendant at the farm before.
2. May 2, 2019 Battery, Loitering, and Petty Theft
On May 2, 2019, Diaz noticed that defendant's truck was parked at the farm, but defendant was not inside. Diaz then saw that the doors of his own vehicle were open and defendant was in the backseat rummaging through Diaz's car. Diaz had left the car unlocked because he was nearby and had recently taken a break.
Diaz approached defendant and told him to stop and leave everything he had in his hands. Defendant had an unopened can of Coke from Diaz's car, a pair of Ray Ban sunglasses, and a lunch bag. Defendant said, " 'Okay. I'm leaving, I'm leaving, I'm leaving,' " but Diaz told him not to leave and that he was calling the police because it was not the first time. From about 12 or 18 feet away, defendant threw the Coke at Diaz, striking him. Defendant threw everything else he had on the ground.
When Diaz's coworker Moises Angeles came over to them, defendant ran through the fields, tripped, and ran across Highway 1 asking for help. Diaz yelled at defendant to stop. Once defendant got to the other side of the highway, he told Diaz, " 'You're going to be sorry. . . . I'm going to tell your boss to fire you and that you hit me.' "
Monterey County Sheriff's Deputy Blaine Councilman responded to a report of a fight at the farm. Defendant flagged the officer down on the west side of Highway 1 across from the farm. No one else was on foot in that area. Defendant spoke rapidly and had an abrasion similar to road rash on the right side of his face. Defendant said he had been hit by a rock, but the deputy thought that was inconsistent with the appearance of the injury because there was no swelling. Defendant's vehicle, a black Cadillac SUV, was parked by the farm. Defendant did not have any stolen property on him.
Deputy Councilman detained defendant. As the deputy was walking defendant to his patrol car, field supervisor Esequiel Narez pulled up and began yelling and pointing at defendant. Narez had been called to the farm because two workers saw a person breaking into their vehicles. Narez knew defendant because defendant's father had been Narez's neighbor for about five or six years. Defendant did not work at the farm and did not have permission to be there. According to Narez, May 2 was the third time defendant had been on the farm. Four or five months earlier, defendant had approached Narez at the farm because he had locked himself out of his Cadillac SUV.
3. Subsequent Events
On July 20, 2019, defendant almost hit Narez with his truck. Defendant got out of his vehicle and approached Narez, calling him a " 'motherfucking Mexican' " and saying, " 'You cause me problems.' "
On August 5, 2019, the day Narez, Diaz, and Angeles were scheduled to testify at trial, defendant approached them as they sat in Narez's vehicle near the courthouse. Defendant swore at them, used racial slurs, spat on Narez's truck, and said, " 'I'm going to kill you motherfuckers. I'll see you.' " Defendant threatened them repeatedly. Defendant walked away when Angeles tried to record defendant on his cell phone.
B. Defense Evidence
Defendant called Deputy Councilman as a witness. Deputy Councilman testified that on May 2, Diaz told him that he had locked his car when he parked it at the farm after arriving to work. Diaz stated that defendant had broken the door handles to Diaz's vehicle on May 2.
Defendant did not testify.
C. Charges , Verdict , and Sentence
Defendant was charged with attempted auto burglary (§§ 664, 459; count 1), misdemeanor battery (§ 242; count 2), misdemeanor loitering (§ 647, subd. (h); count 3), and misdemeanor petty theft (§ 484, subd. (a); count 4). It was also alleged that defendant had previously been convicted of a strike offense (§ 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, subd. (b)).
A jury found defendant guilty as charged. The trial court found true the allegations that defendant had previously been convicted of a strike offense and had served a prior prison term.
On September 12, 2019, the trial court denied defendant's Romero motion to strike the prior strike allegation and sentenced defendant to three years in prison. On January 23, 2020, pursuant to Senate Bill No. 136, the trial court struck the prior prison term enhancement and resentenced defendant to two years in prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
III. DISCUSSION
A. Eyewitness Identification Instruction
Defendant contends the trial court violated state law and his state and federal due process rights when it instructed the jury on eyewitness identification testimony with CALCRIM No. 315 because the instruction told the jury to consider the eyewitness's level of certainty when evaluating the testimony. Defendant argues that an eyewitness's level of certainty regarding his or her identification of a perpetrator does not necessarily correlate to level of accuracy, which renders certainty level an inaccurate and irrelevant consideration. Defendant also contends that if this court finds the claim has been forfeited by his failure to object to the instruction below, his counsel provided ineffective assistance. The Attorney General counters that the claim has been forfeited and that defendant has not demonstrated his counsel was ineffective.
1. Trial Court Proceedings
The trial court instructed the jury on eyewitness identification testimony with CALCRIM No. 315 as follows: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions: Did the witness know or have contact with the defendant before the event? How well could the witness see the perpetrator? What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? 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 passes between the event and the time when the witness identified the defendant? Was the witness able to pick a 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? . . . [W]ere 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." Defendant did not object to the instruction.
2. Analysis
The issue of whether it violates a defendant's due process rights to instruct jurors to consider an eyewitness's level of certainty when evaluating eyewitness identification testimony is currently before the California Supreme Court in People v. Lemcke, 2018 Cal.App. Unpub. Lexis 4265, review granted October 10, 2018, S250108. The court has upheld the validity of CALCRIM No. 315's predecessor, CALJIC No. 2.92, in prior decisions.
For example, in People v. Johnson (1992) 3 Cal.4th 1183 (Johnson), the trial court instructed on eyewitness identification testimony with a modified version of CALJIC No. 2.92, which told jurors to consider among other factors "[t]he extent to which the witness was either certain or uncertain of the identification." (Johnson, supra, at p. 1230, fn. 12.) The California Supreme Court held that the instruction was not error, even though a defense expert "testified without contradiction that a witness's confidence in an identification does not positively correlate with its accuracy." (Id. at p. 1231.) The court determined that "if the jury was persuaded by [the expert's] testimony, the instructions allowed it to infer that [the victim's] positive identification was not necessarily an accurate one." (Id. at p. 1232.)
More recently, in People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez), the defendant claimed the trial court erred when it instructed jurors pursuant to CALJIC No. 2.92 that they should consider " 'the extent to which the witness is either certain or uncertain of the identification' " because the language was at odds with "scientific studies that conclude there is, at best, a weak correlation between witness certainty and accuracy." (Sánchez, supra, at p. 461, fn. omitted.) The California Supreme Court determined the defendant's claim had been forfeited by his failure to request modification of the instruction in the trial court. (Id. at pp. 461-462; see also People v. Ward (2005) 36 Cal.4th 186, 213 (Ward) [finding no sua sponte duty to modify CALJIC No. 2.92].) The court also pointed out that it had twice upheld the propriety of the "certainty factor." (Sánchez, supra, at p. 462.) The court stated that "[s]tudies concluding there is, at best, a weak correlation between witness certainty and accuracy are nothing new," but acknowledged that "some courts have disapproved instructing on the certainty factor in light of the scientific studies. [Citations.]" (Ibid.) The court found no error. (Ibid.)
The Sánchez court also determined that defendant was not prejudiced by the instruction. (Sánchez, supra, 63 Cal.4th at pp. 462-463.) The court observed that "[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." (Id. at p. 462.) "Moreover, the eyewitness identifications were far from the only evidence connecting [the] defendant to the crimes." (Ibid.)
Here, like the defendant in Sánchez, defendant forfeited any challenge to the trial court's eyewitness identification instruction by failing to object to the instruction or request its modification. (See Sánchez, supra, 63 Cal.4th at pp. 461-462.) We therefore conclude that the trial court did not err when it instructed the jury on eyewitness identification testimony with CALCRIM No. 315. (See Sánchez, supra, 63 Cal.4th at pp. 461-462; Ward, supra, 36 Cal.4th at p. 213.)
3. Ineffective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel based on his counsel's failure to object to the trial court's eyewitness identification instruction.
To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that his or her trial counsel's performance was deficient and that he or she suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a "defendant must show that there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) Prejudice requires a showing of "a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Neither deficient performance nor prejudice has been established here. Based on the California Supreme Court's decisions in Johnson and Sánchez, which uphold instructional language similar to that defendant challenges, defendant cannot demonstrate that his "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Strickland, supra, 466 U.S. at p. 688; see Johnson, supra, 3 Cal.4th at p. 1231; Sánchez, supra, 63 Cal.4th at p. 462.) "Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1162.)
Nor does defendant establish prejudice. As in Sánchez, the trial court's instruction with CALCRIM No. 315 did not equate the certainty of an eyewitness's identification with its accuracy and an eyewitness's certainty was only one of many factors the jury was told to consider. (See Sánchez, supra, 63 Cal.4th at p. 461.) In addition, Diaz, the eyewitness here, was not someone who saw a stranger perpetrate a crime and then identified a person in court as the perpetrator. Diaz had seen defendant before the March 2 incident and saw him again before he identified defendant at trial. Moreover, Diaz's testimony regarding defendant's presence at the farm on May 2 was corroborated by another witness, and defendant demonstrated consciousness of guilt by threatening the witnesses before they testified. Defendant has therefore failed to demonstrate there is "a reasonable probability that . . . the result of the proceeding would have been different" had his trial counsel objected to the trial court's eyewitness identification instruction. (Strickland, supra, 466 U.S. at p. 694.)
For these reasons, we conclude defendant has not established that his counsel performed deficiently or that he was prejudiced by his counsel's performance. We therefore deny defendant's ineffective assistance of counsel claim. (See Strickland, supra, 466 U.S. at p. 687.)
B. Sentencing on Misdemeanor Convictions
The Attorney General contends that the matter must be remanded because the trial court failed to impose sentence on defendant's misdemeanor convictions. Defendant counters that remand is unnecessary because the January 23, 2020 minute order from defendant's resentencing indicates the trial court denied defendant probation on the misdemeanor convictions, which demonstrates the court "declined to impose a sentence on those counts." Defendant also argues that remand is unnecessary because section 669 requires the misdemeanor sentences "be deemed concurrent."
1. Trial Court Proceedings
At the initial sentencing hearing on September 12, 2019, the trial court imposed the middle term of one year on count 1 for defendant's felony conviction of attempted auto burglary, which it doubled pursuant to the Three Strikes Law. It also imposed a consecutive one-year sentence for the prior prison term enhancement, for a total term of three years. The court did not impose sentences on defendant's three misdemeanor convictions, counts 2 through 4.
On January 23, 2020, pursuant to its authority under section 1170, subdivision (d), the trial court recalled defendant's sentence, struck the prior prison term enhancement, and resentenced defendant. The court imposed the middle term of one year on count 1, which it doubled, for a total term of two years. The January 23, 2020 minute order states that probation was denied on counts 2, 3, and 4. The court did not impose sentences on counts 2 through 4.
2. Analysis
The record on appeal establishes that the trial court did not impose sentences on defendant's misdemeanor convictions. Although defendant correctly observes that the January 23, 2020 minute order states that the trial court denied probation on the misdemeanor counts, a trial court may not decline to impose sentence. Rather, "[a] sentence must be imposed on each count." (People v. Alford (2010) 180 Cal.App.4th 1463, 1469; see also § 12.) Section 669, cited by defendant in support of his argument that remand is not required, does not state otherwise, but instead mandates that when the court fails to specify how the terms of imprisonment shall run, "the term of imprisonment on the second or subsequent judgment shall run concurrently." (Id., subd. (b).) Here, no terms were imposed on defendant's misdemeanor convictions at all.
We will therefore remand the matter for the trial court to impose sentence on defendant's misdemeanor convictions.
IV. DISPOSITION
The judgment is reversed and the matter is remanded for the trial court to impose sentence on defendant's misdemeanor convictions.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.