Filed 7/7/17 P. v. Ward CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALONZO DEVAL WARD,

Defendant and Appellant.
H042122
(Santa Clara County
Super. Ct. No. C1362006)
A jury convicted defendant Alonzo Deval Ward of second degree robbery for pushing a man to the ground and taking his personal property. Defendant contends the trial court impeded his ability to present a misidentification defense by refusing to give a requested pinpoint instruction creating a presumption that a percipient witness not produced by the prosecution would have testified unfavorably to the prosecution. Because no evidence in the record indicates the prosecution knew of any percipient witnesses other than the two who testified at trial, we find no error in denying defendant’s request and will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by first amended felony information with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and, in the alternative, grand theft from a person (Pen. Code, §§ 484, 487, subd. (c)). The information also alleged defendant had suffered a prior strike conviction (Pen. Code, § 667, subds. (b)–(i)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)).
A. TRIAL TESTIMONY
1. The Robbery
James Robinson testified that he and his wife, Antonia Starr, went to dinner followed by a reggae concert with friends in downtown San Jose. Robinson and Starr left the concert around 12:30 a.m. and started walking toward a friend’s house. Around 1:00 a.m., a man (identified as defendant at trial by Robinson) grabbed Robinson’s arm from behind and pushed him to the ground. Defendant sat on Robinson’s lower back to hold him down and took Robinson’s wallet and cellular phone. When defendant stood up and moved a few steps away while checking the contents of Robinson’s wallet, Robinson was able to see that defendant was wearing a black hooded sweatshirt with the hood up. Robinson testified that a “Latina woman who was with another group” nearby told defendant, “ ‘Give him back his wallet.’ ” Defendant eventually threw Robinson’s wallet on the ground and walked away. Robinson testified that he feared for his life, and that defendant dislocated Robinson’s shoulder and injured his ribs. The incident lasted between 60 and 90 seconds.
Defense counsel impeached Robinson with his preliminary hearing testimony. Robinson had testified inconsistently about certain details, including the type of clothing his wife had been wearing that night, the time they left the reggae concert, and whether defendant’s hood had been up or down during the robbery. In response to Robinson testifying that defendant’s hair had been in a “corn-rolled type” style, defense counsel impeached Robinson with his statement recorded in a police report that defendant’s hair was in an Afro. Robinson testified that he never sought medical attention for his injuries and that he cared for his injuries by talking “to doctors on the phone who are my friends.” Robinson did not know anything about the woman who had told defendant to return the wallet.
Antonia Starr’s testimony about the robbery was largely consistent with her husband’s account. Starr testified that defendant and a woman he was with started following Starr and Robinson as they were walking down the street. Defendant was wearing a “dark hoodie, possibly black, and jeans.” The woman who was with defendant said something, and then defendant pushed Robinson to the ground and went through his pockets. The woman touched Starr on her shoulders to keep her from helping Robinson. The whole incident ended within five minutes.
2. Police Response
San Jose Police Officer Gustavo Perez testified that he was on patrol the night of the robbery. A car stopped next to Perez’s patrol car and a man in the car reported seeing a man on the ground nearby with another man going through his pockets. Perez went to the scene and saw Robinson on the ground with several people gathered around him. A family approached Perez’s patrol car and gave him a description of the suspect.
San Jose Police Officer Thuy Le received a description of a robbery suspect from dispatch while on patrol that night near the scene. The description—admitted for the limited purpose of showing Le’s subsequent conduct—was of “a heavyset black male wearing a red T-shirt ... walking with a female.” Ten to fifteen minutes after the robbery was reported to the police, Le saw defendant and a woman walking, determined they matched the description of the robbery suspects, and detained them. Defendant was wearing a red shirt and carrying a black hooded sweatshirt. Defendant did not have Robinson’s cellular phone when Le made contact with him. Robinson’s phone was never recovered.
3. Starr’s Identification of Defendant
San Jose Police Officer Nathan Trang responded to the robbery scene after hearing about it from dispatch. Trang heard on his police radio that another officer had detained a suspect. Trang took Starr on a short drive in his patrol car (“[a]bout a minute, minute and a half”) to reach the suspect so that Starr could participate in an in-field showup. While he drove, he read her a standardized admonition about the showup process: “ ‘You are about to view a person being detained who may or may not be involved in this case. The person may or may not be handcuffed, but that fact should not sway your decision. Take a good look at the person and tell me if the person was or was not involved in the incident we’re investigating.’ ” Trang directed his spotlight on defendant and the officers who were detaining defendant walked him toward Trang’s patrol car. Starr remained in Trang’s patrol car while defendant stood about 40 feet from the car. Starr identified defendant as the man who robbed Robinson.
Starr testified that she did not recall hearing an admonition from Trang. She testified that Trang told her, “ ‘Can you please make sure that this is the individual,’ ” when he took her to identify defendant. Starr testified that she positively identified defendant based on his facial features and his clothing.
B. PROPOSED PINPOINT INSTRUCTION AND CLOSING ARGUMENT
Defense counsel requested a pinpoint instruction regarding what he perceived as the prosecution’s failure to call logical percipient witnesses at trial. The precise text of the proposed instruction is not in the record, but counsel asked the court “to instruct the jury that the general rule is even if in a criminal case a party had the power to produce a witness whose testimony could elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” Counsel argued that the instruction was necessary to “remedy” another instruction informing the jury: “Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events.” The trial court denied the request for a pinpoint instruction but told defense counsel he could make the point during his closing argument.
The defense theory during closing argument was that Starr incorrectly identified defendant as the person who robbed Robinson. Counsel noted that “eyewitness identification is notoriously faulty” and argued that the circumstances of the showup made the identification “completely unreliable.” Defense counsel showed the jury a slide with the text of Evidence Code section 412, and the court sustained an objection by the prosecutor. Despite not being allowed to argue specifically about that Evidence Code section, defense counsel was allowed to argue about the prosecution’s lack of additional percipient witnesses. He argued: “Now the other thing I want you to think about ... where are the witnesses? [¶]…[¶] You heard the officers tell you that it was a crowded night. ... They told you that several people stopped and inquired as to what was going on. If you think for one second that the half dozen or more officers that responded to the scene didn’t make an attempt to speak with one of those witnesses and get an identification of somebody they thought had just committed a serious and violent robbery, I’m sorry, but you’d be mistaken.”
C. VERDICT AND SENTENCING
The jury found defendant guilty of second degree robbery. Defendant waived jury on the enhancements and later admitted them. The court sentenced defendant to 11 years in state prison, consisting of six years for second degree robbery (three-year midterm, doubled because of the prior strike; Pen. Code, §§ 213, subd. (a)(2), 667, subd. (e)(1)) plus five years for the prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)).
II. DISCUSSION
Defendant’s sole contention on appeal is that the trial court erred by not providing defendant’s requested pinpoint instruction.
A. LEGAL STANDARDS
“As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 U.S. 58, 63.) But a trial court has no duty to provide a pinpoint instruction requested by the defense “if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.” (People v. Moon (2005) 37 Cal.4th 1, 30.) Though the Supreme Court has not specifically announced the standard of review for the denial of a requested pinpoint instruction, we will review this instructional issue de novo. (Cf. People v. Cook (2006) 39 Cal.4th 566, 596 [“We independently review a trial court’s failure to instruct on a lesser included offense.”].)
Evidence Code section 412 provides: “If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” And as the United States Supreme Court noted in Graves v. United States (1893) 150 U.S. 118, 121, the “rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.”
B. THE TRIAL COURT DID NOT ERR
Defendant argues that certain testimony provided substantial evidence to support the requested pinpoint instruction, including Robinson’s testimony that he heard a Latina tell defendant to return the wallet; Officer Perez’s testimony that a man in a car reported seeing the robbery; Officer Perez’s testimony that he received a description of defendant from a family who approached his patrol car; and Officer Le’s testimony that officers responding to crime scenes generally talk to victims and witnesses to obtain a description of suspects. Based on that evidence, defendant contends that “[s]urely, then, the identities of bystanders who saw the crime were known to the prosecution.”
The problem with defendant’s argument is that it is based on pure speculation. The requested instruction presupposes that the prosecution had the power to produce witnesses and chose not to. Defendant points to no evidence in the record showing that the prosecution actually possessed information about any additional percipient witnesses to the robbery but chose not to have those witnesses testify. Based on defense counsel’s references to police reports while cross-examining prosecution witnesses, it appears defendant possessed police reports about the crime at issue, which would have provided the names of any percipient witnesses (had any names been recorded). And the trial court granted defendant’s motion in limine seeking “disclosure of all potentially exculpatory evidence favorable to the defendant,” which would certainly include information about percipient witnesses who might provide testimony favorable to defendant. Defendant’s failure to identify any evidence in the record regarding additional witnesses dooms his argument.
There is also affirmative evidence in the record that the prosecution did not know the name or location of one of the percipient witnesses. Before trial, the court noted that “a civilian witness ... took a photo of a person she believed to have been the suspect and showed the photo” to Officer Perez. The parties agreed to prevent Officer Perez from testifying about any statements made by that woman because she “apparently disappeared on the date of the incident after showing the officer the photo” without providing her name.
Defendant discusses People v. Romero (1966) 244 Cal.App.2d 495 (Romero), arguing that the defendant in that case “contended the trial court had erred in failing to instruct the jury” about Evidence Code section 412. But Romero involved a claim of prosecutorial misconduct, not instructional error as defendant’s brief suggests. The sentence defendant quotes from Romero is part of a long quotation from People v. Adame (1959) 169 Cal.App.2d 587, 599–600 (Adame). And the Adame court observed that the Evidence Code section 412 instruction should be “given rarely, if at all” in criminal cases because the proper occasions for providing it “are so few and the improper occasions are so many.” (Adame, at pp. 599–600.)
Defendant’s citation to People v. Ford (1988) 45 Cal.3d 431, 446–449 (Ford), is similarly unpersuasive because that case also involved a claim of prosecutorial misconduct rather than instructional error. Though Ford observed at page 446 that the logic of allowing an instruction based on the principles stated in Evidence Code section 412 had been recognized by federal courts and courts in other states, that observation was dictum. (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 [“It is axiomatic that cases are not authority for propositions not considered.”].)
A brief discussion of jury instructions based on Evidence Code section 412 by the Supreme Court in People v. Marshall (1996) 13 Cal.4th 799 (Marshall) is instructive. Marshall was accused of killing his wife and others at his home. (Id. at pp. 816–817.) A witness saw Marshall wearing a white suit in his house the night of the homicides. (Id. at p. 818.) Another witness testified that he found a white suit with blood spattered on it in Marshall’s house the day after the murders. (Id. at p. 819.) The Supreme Court noted Marshall’s apparent claim that his trial counsel was ineffective for not requesting a pinpoint instruction based on Evidence Code section 412, since the prosecution never introduced the bloody suit. (Marshall, at p. 836, fn. 5.) The Supreme Court rejected that argument because Marshall did not show that “the prosecution in fact was in possession of, or had access to, the bloodied suit.” (Ibid.)
Like Marshall, defendant here has not provided any evidence to show that the prosecution in fact had access to any additional witnesses. Because the record does not show that the prosecution knew of additional witnesses but chose not to call them at trial, substantial evidence did not support the requested pinpoint instruction.
III. DISPOSITION
The judgment is affirmed.

____________________________________
Grover, J.




WE CONCUR:



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Rushing, P. J.




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Premo, J.