People v. Gillean CA6, H045860

Background

CHP officer observed a Honda Prelude commit a traffic violation, pursued the car for 5–7 minutes during which the driver fled at high speed, drove on shoulders, across lanes, and briefly against traffic; officer terminated pursuit for safety.
Officer went to the vehicle’s registered address, spoke with the property owner who said someone with the shared surname had left in the car earlier; officer later viewed a DMV photo and identified defendant as the driver; defendant’s license was suspended.
Defendant was charged with reckless driving while evading an officer (Veh. Code § 2800.2), driving against traffic while evading (Veh. Code § 2800.4), and driving on a suspended license (Veh. Code § 14601.1); a prior prison-term enhancement under former Pen. Code § 667.5(b) was alleged.
A jury convicted; the trial court imposed concurrent two-year terms on the felonies plus a one-year prior-prison enhancement and time served on the misdemeanor (total three years).
On appeal Gillean challenged prosecutorial misconduct in rebuttal, the reliability of the DMV single-photo identification, CALCRIM No. 315 (witness certainty) instruction, cumulative error, and sentencing (Pen. Code § 654 stay and striking the § 667.5(b) enhancement under recent statutory change).
The court affirmed the convictions, rejected the trial- and prosecutorial-error claims, but modified the judgment to stay sentence on the driving-against-traffic count (Pen. Code § 654) and struck the one-year § 667.5(b) enhancement as retroactively inapplicable.

Issues

Issue	People’s Argument	Gillean’s Argument	Held
Prosecutorial misconduct in rebuttal	Prosecutor’s remarks were a fair response to defense questioning absence of prior-driving evidence and described legal concept of propensity, not a reference to excluded hearsay.	Prosecutor improperly suggested evidence existed or was barred only as propensity, prejudicing jury.	No misconduct or prejudice; remarks were permissible comment and jury was instructed that attorney argument is not evidence.
Admissibility of DMV single-photo ID	Officer’s photo identification was reliable given close, repeated observation during pursuit, officer training, and short lapse between event and photo review.	Single-photo showup from DMV was unduly suggestive and tainted in-court ID; due process violation.	No due process violation; applying Brathwaite totality factors, ID was reliable despite single-photo display.
CALCRIM No. 315 (witness certainty)	Instruction is a neutral list of factors for jury to weigh; does not equate certainty with accuracy or reduce burden.	Certainty is unrelated to accuracy; including it risks lessening prosecution’s burden and impeding defense.	No error: Supreme Court authority (People v. Lemcke) upholds instruction as constitutional.
Cumulative error	—	Trial errors cumulatively denied fair trial.	No trial errors found; cumulative-error claim fails.
Penal Code § 654 (concurrent sentence for driving-against-traffic)	People argued separate objective (threat) could support separate punishment for driving against traffic.	Acts were part of single objective—avoid arrest—so sentence for count 2 must be stayed.	Court finds insufficient evidence of independent objective; stay execution of sentence for count 2 under § 654.
Penal Code § 667.5(b) prior-prison-term enhancement	People did not oppose striking enhancement but sought remand for possible resentencing discretion.	Enhancement no longer applies after S.B. 136; it must be stricken retroactively.	Enhancement stricken on appeal as ameliorative change applies retroactively; no remand needed given record and time served.

Key Cases Cited

Manson v. Brathwaite, 432 U.S. 98 (1977) (single-photo identifications may be suggestive but admissibility depends on reliability under totality of circumstances)
Simmons v. United States, 390 U.S. 377 (1968) (single-photo displays risk misidentification; convictions set aside only if procedure creates substantial likelihood of irreparable misidentification)
People v. Cunningham, 25 Cal.4th 926 (2001) (California test for due process challenge to identification: suggestiveness and reliability factors)
Perry v. New Hampshire, 565 U.S. 228 (2012) (in absence of improper police action, reliability of ID is for adversary testing, not exclusion)
People v. Lemcke, 11 Cal.5th 644 (2021) (upheld CALCRIM identification instruction; certainty is one factor among many and does not lower burden)
People v. Beamon, 8 Cal.3d 625 (1973) (Pen. Code § 654 bars multiple punishments for indivisible course of conduct)
People v. Harrison, 48 Cal.3d 321 (1989) (defendant’s intent/objective governs § 654 indivisibility analysis)
In re Estrada, 63 Cal.2d 740 (1965) (ameliorative statutory changes apply retroactively to nonfinal judgments)