People v. Payne CA2/7
B302072
| Cal. Ct. App. | Jul 6, 2021Background
- Between Feb 11–27, 2017 Payne committed a series of robberies/attempted robberies at multiple Long Beach/Carson businesses; most incidents were captured on surveillance video.
- Multiple victims/witnesses were shown the same six‑pack photographic lineup (Payne in photo #2); many identified Payne, while several could not or were equivocal.
- Payne was arrested after police traced a Mercedes license plate from one incident to him; police recovered a jacket with a BB gun and bandanas.
- A jury convicted Payne of 11 robberies and 3 attempted robberies and found true weapon enhancements; the judge later found prior strike and prior prison term allegations true; aggregated sentence was 468 years to life.
- At trial the court instructed with CALJIC No. 2.92, which included the factor "the extent to which the witness is either certain or uncertain of the identification." Payne argued on appeal that inclusion of the certainty factor violated due process in light of scientific research (and the California Supreme Court’s later decision in People v. Lemcke).
- The Court of Appeal requested supplemental briefing after Lemcke and affirmed, holding that on the record as a whole the certainty factor did not render Payne’s trial fundamentally unfair.
Issues
| Issue | People’s Argument | Payne’s Argument | Held |
|---|---|---|---|
| Whether including "certainty" in CALJIC No. 2.92 violated due process by misleading jurors about reliability of eyewitness confidence | Instruction is permissible; prior precedent upholds such factors and other trial safeguards mitigate any potential prejudice | Scientific consensus shows confidence is generally unreliable; Lemcke flags the certainty factor as potentially misleading and recommends omission | Affirmed. Under Lemcke, reviewed the record as a whole and found the instruction did not render trial fundamentally unfair given surveillance videos, mixed witness certainty, cross‑examination, and other jury instructions |
| Whether Payne forfeited the instructional claim by failing to object at trial | Claim was forfeited by trial counsel’s failure to request modification | Even if not objected to, the instruction was unconstitutional on the record | Court reviewed merits (declining to find forfeiture dispositive) and rejected Payne’s due process claim; did not reach ineffective‑assistance claim |
Key Cases Cited
- People v. Lemcke, 11 Cal.5th 644 (Cal. 2021) (discusses scientific consensus that eyewitness confidence is generally unreliable and directs Judicial Council review; advises omission of certainty factor until reviewed)
- People v. Sánchez, 63 Cal.4th 411 (Cal. 2016) (upheld predecessor instruction and explained it does not direct jurors that certainty equals accuracy)