P. v. Leonard
Filed 9/12/12 P. v. Leonard CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL
LEONARD,
Defendant and Appellant.
A133510
(Alameda County
Super. Ct.
No. CH50412)
Daniel
Leonard appeals his conviction for first
degree residential burglary, contending that the trial court gave an
erroneous jury instruction with respect to the evaluation of
counsel rendered ineffective assistance in failing to request a clarifying
instruction. We shall affirm.
There
was trial testimony of the following. On December 17, 2010, at approximately 6:00 p.m., Jorge Villalvazo heard the sound of broken
class outside his home on Blanco Street
in San Leandro. Looking out the
window, he observed two people near his neighbor’s house, one of whom was
climbing through a window. Both persons wore hoodies; he could not ascertain
their gender. One of the hoodies was gray or black. Villalvazo promptly called
911.
Alameda
County Deputy Sheriff Matthew Skidgel received a dispatch concerning an
house and parked approximately 100 feet south of the address. Skidgel observed
two suspects emerge from the residence and he walked toward the suspects
quickly. Both suspects appeared to be carrying items.
As
Skidgel approached, the suspects appeared startled and dropped the items they
had been carrying. Skidgel drew his weapon, activating the flashlight attached
to the weapon, illuminating the suspects. As one suspect turned and ran,
Skidgel focused on the suspect who remained. The flashlight illuminated the
suspect from his upper thighs to his head. The deputy was about 30 feet from
the suspect. Skidgel viewed his face for “less than five seconds,†but
determined that his expression was “[v]ery shocked, mouth open, eyes wide open.
Surprised.†Skidgel described the suspect as 5 feet 10 inches,
possibly 210 pounds and wearing a black hooded sweatshirt with the hood pulled
over his head. The suspect retreated and ran from Skidgel. Skidgel broadcast a
description of the suspect: a Black male with a light complexion, about six
feet tall, medium build, wearing dark clothing, and possibly a black-colored sweatshirt.
Deputy
Patrick Kerns also responded to the 911 call. Kerns saw two Black males in dark
clothing carrying items and walking from the front of the house. He did not see
either of their faces before losing sight of them.
After
hearing Skidgel’s description of the suspects, two other police officers
spotted defendant approximately a quarter-mile from the crime scene. Defendant
matched the description provided over the dispatch system. The two officers
approached defendant, who gave the officers a glancing look and did not attempt
to flee or resist. The deputies arrested defendant and placed him in handcuffs.
Although the evening was cold and rainy, defendant was drenched in sweat and
steam was emitting from him. Defendant had an elevated pulse. One of the
arresting officers announced over the radio that they had detained a suspect
and requested the presence of Skidgel. The officer also announced that the
suspect had been running and was not wearing the black sweatshirt, having
possibly discarded it. Skidgel arrived at the scene about seven minutes later
and identified defendant as the suspect. Skidgel said he was 100 percent sure
that defendant was the burglar.
Defendant
was charged by information with first degree residential burglary (Pen. Code, §§ 459,
460, subd. (a))
title="">[1] and a
prior prison term pursuant to section 667.5, subdivision (b). The defense
relied exclusively on expert testimony from experimental psychologist Dr.
Robert Shomer. Dr. Shomer testified concerning the factors that affect eyewitness
testimony and the unreliability of eyewitness certainty as a predictor of
accurate identification.
The
jury found defendant guilty as charged. The court found the prior prison
enhancement to be true but stayed the enhancement when sentencing defendant to
four years in prison for the burglary. Defendant filed a timely
Discussion
I.
Instruction
Utilizing
CALCRIM No. 315, the court instructed the jury on evaluating eyewitness
testimony as follows: “You’ve heard eyewitness testimony identifying the
defendant. As with 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 length of time to make the 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 the 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 made an identification? Are the witness and the defendant
of different races? Were there any other circumstances affecting the witness’s
ability to make an accurate identification?†(Italics added.)
Defendant
contends the trial court erred in instructing that witness certainty is
indicative of accurate eyewitness identification. Defendant argues that this
part of the instruction violated his right
to due process because it was “predicated on a proposition which has been
established to be empirically false, and recognized as such by numerous courts
and judges.†In evaluating a claim of instructional error, the reviewing court
must consider whether there is a reasonable likelihood of misapplication by
evaluating the whole record, including the instructions in their entirety and
the arguments that counsel presented to the jury. (Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4;
526-527.) “The only question for us is ‘whether the ailing instruction by
itself so infected the entire trial that the resulting conviction violates due
process.’ †(Estelle, supra, at
p. 72.) “It is well established that the instruction ‘may not be judged in
artificial isolation,’ but must be considered in the context of the
instructions as a whole and the trial record.†(Ibid.)
The
jury instruction here set forth a multitude of factors that the jury might
consider in evaluating the accuracy of the eyewitness
testimony. Dr. Shomer’s testimony emphasized the need to consider factors
other than the witness’s certainty, most of which were included in the
non-exclusive list of factors included in the jury instruction. The instruction
did not require the jury to find that an eyewitness who is certain is
necessarily correct. The jury was instructed to weigh the different factors as
it deemed appropriate.
Defendant
contends the instruction fundamentally discredited his case, which relied
exclusively on Dr. Shomer’s testimony that witness certainty is not indicative
of the reliability of an identification. The prosecutor used the jury
instruction to discredit Dr. Shomer’s testimony.
the prosecutor did not argue that the jury should completely disregard Shomer’s
testimony, but that certainty is a relevant factor despite the testimony of Dr.
Shomer. Dr. Shomer did not testify that the certainty of a witness has no
bearing on the reliability of an identification, but that a witness’s certainty
is not a reliable indicator of accuracy under less than ideal conditions. The
jury was not bound by the instruction to either accept or reject Dr. Shomer’s
testimony. In view of Dr. Shomer’s testimony, the jury was free to give
that factor little or no weight. The court instructed jurors to “consider the
expert’s testimony and give it whatever weight you believe it is due. The
meaning and importance of such testimony is for you to decide.†The inclusion
of certainty as one factor to consider did not instruct the jury to disregard
or to minimize the significance of Dr. Shomer’s testimony. There was no error
in giving the instruction.
II.
Representation
“ ‘A
criminal defendant is guaranteed the right
to the assistance of counsel by both the state and federal Constitutions.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) “Construed in light of
its purpose, the right entitles the defendant not to some bare assistance but
rather to effective assistance.†’ †(People v. Ledesma (1987) 43 Cal.3d 171, 215, italics deleted.) The
defendant has the burden of demonstrating ineffective assistance of counsel. (
389.) “ ‘ “[A] defendant must first show counsel’s performance was
‘deficient’ because his ‘representation fell below an objective standard of
reasonableness ... under prevailing professional norms.†’ †(
832-833, citing Strickland v. Washington
(1984) 466 U.S. 668, 687-88 and People v.
Pope (1979) 23 Cal.3d 412, 425.) Secondly, a defendant must establish
“prejudice flowing from counsel’s performance or lack thereof.†(
defendant is prejudiced when there is a “ ‘ “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.†’ †(In re Harris, supra, at
p. 833.)
Defendant
contends trial counsel was ineffective for failing to request an instruction
specifically advising the jury that witness confidence may not be an indicator
of the accuracy of an identification. Although there is increasing recognition
of the potential unreliability of an eyewitness’s identification, the law in
California is that an additional instruction to view eyewitness testimony with
caution would improperly single out testimony as suspect. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1296.) “The
requested cautionary instruction would . . . improperly usurp the
jury’s role as the exclusive trier of fact by binding it to the view that
eyewitness identifications are often mistaken.†(People v. Wright (1988) 45 Cal.3d 1126, 1153.) Rather than objecting to the instruction, defendant’s counsel
attacked Deputy Skidgel’s certainty by presenting expert testimony that
eyewitness certainty is not indicative of accurate identification and by
emphasizing other factors that tended to cast doubt on his ability to make an
accurate identification—such as his distance from the suspect and the darkness
of the evening. Under the circumstances we cannot conclude that counsel’s
performance fell below the standard to be expected of trial counsel. Moreover,
even if the attorney’s failure to request such an instruction was deficient,
defendant fails to show prejudice. Under the current state of the law, it is
unlikely that the instruction would or should have been given even if requested.
And if it had, it is not likely to have produced a different outcome. Defense
counsel pointed out to the jury all of the reasons to reject Skidgel’s
identification. The jury instructions directed jurors to consider numerous
factors other than the witness’s certainty which bore upon the reliability of
the identification. Significantly, the identification was made minutes after
Skidgel observed the suspect. Moreover, defendant was apprehended while
apparently fleeing the scene and there is no indication of other persons being
present, which might have led to apprehension of the wrong person. Thus, defendant has failed to demonstrate
either element necessary to establish ineffective assistance of counsel.
Disposition
The judgment is affirmed.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1]
All statutory references are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2]
The prosecutor argued: “The eleventh question that is asked is: How certain was
the witness when he or she made an identification? Deputy Skidgel again was
very, very, very certain about his identification. He testified that he
immediately recognized the defendant based upon the defendant’s face when he
initially saw him in Lieutenant Hesselein’s custody. . . . When asked
in court whether he had any doubt the defendant was the same man, he said no.
There’s no doubt in his mind that the defendant was the individual that he saw
and confronted in the front of [the victim’s] home.†“Dr. Shomer’s response was
that certainty correlates with accuracy only when the identification procedure
is done, quote, under ideal conditions. He specifically stated that certainty
cannot apply to show-ups because show-ups are inherently suggestive.
[¶] Well, ladies and gentlemen, that conflicts with the instruction that
you were just given by Judge Gaffey. And this is one of the 13 factors for
witness identification and I will quote it directly, and the question is, quote,
how certain was the witness when he or she made an identification, unquote.
That’s all it is. When you get the instructions when you go back to deliberate,
you can look at it. That’s all it says.â€
