People v. E.H.People v. E.H.
We GRANT the request to modify our opinion and ORDER that the opinion filed on February 22, 2022, including its caption, be modified by removing any reference to the full or partial names of the appellants and defendants, and replacing those references with their initials, E.H. and A.T. where appropriate.
On page 5, the last sentence before subsection “C,” should be revised to read: “The prosecution played this recording for the jury, and E.H.‘s first name can be heard a number of times.”
Except for the modification, which doesn‘t affect the judgment, the opinion is unchanged.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
J.
E.H. raises two challenges to the criminal trial on which his juvenile adjudications are based. First, he argues the trial judge violated his due process rights by instructing the jury with CALCRIM No. 315, which covers eyewitness identification evidence and tells the jury to consider, among other factors, the witness‘s level of certainty when making the identification. We reject this argument under People v. Lemcke (2021) 11 Cal.5th 644, in which our Supreme Court recently held that CALCRIM No. 315‘s certainty factor does not violate due process.
I
FACTS
A. Robbery of Ismael
Around midnight on February 7, 2015, Ismael D. was outside his home when he noticed a black Chevy Silverado driving by at an unusually slow pace. Ismael asked the driver if he could help him and, after a brief exchange, the driver got out of the truck, showed Ismael his gun, and asked him if he knew anyone from a local gang called “Cathedral City.” When Ishmael said no, E.H. and his 14-year-old codefendant, A.T., stepped out of the truck.1 A.T. demanded Ismael empty his pockets, and E.H. hit him in the face with a rifle. More people got out of the truck then, all armed with weapons.
B. Home Invasion Robbery of Multiple Victims
Shortly after robbing Ismael, the group went to the home of Duane S. They barged into the bedroom where Duane was hanging out with his brother and his girlfriend, and demanded everyone empty their pockets. One of the group members said he was from Barrio Dream Homes—another Cathedral City gang—and was there to collect on a drug debt. The group took $40 and a computer tablet Duane and his brother had been using moments before to record a rap song. Before leaving the room, E.H. struck Duane in the face with a rifle.
The group proceeded down the hall to another room in the house where Duane‘s girlfriend‘s son and two of his friends were playing video games. They kicked down the locked door, and E.H. and A.T. drew their guns. The group took several items, including a cell phone and a gaming system, and one of the intruders struck one of the victims in the face with a gun. Some of them yelled “Dream Homes” as they fled the scene. The victims saw the intruders drive away in a black Chevy Silverado and immediately called the police.
Officers near the area spotted a truck matching that description. The driver refused to pull over, initiating a relatively brief pursuit that ended when he crashed into a curb. After the crash, everyone in the truck scattered in an attempt to hide. The officers found
C. Eyewitness Identifications
The same night as the robberies, three of the victims identified E.H. as one of the perpetrators from a photographic lineup. These three victims also identified E.H. in court during their trial testimony. Two other victims gave a qualified identification of E.H. from a photographic lineup. One said E.H. “might have been” one of the robbers. The other said E.H. “looked familiar“; however, during trial he identified E.H. as one of the perpetrators.
Without an objection or request for modification from E.H., the trial judge instructed the jury with CALCRIM No. 315, the standard Judicial Council instruction regarding eyewitness identification. That instruction directs the jury to consider up to 15 factors in evaluating eyewitness identification testimony, one of which is the witness‘s level of certainty. It says in relevant part: “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
D. Gang Evidence
Cathedral City Police Officer Alfredo Luna said Barrio Dream Homes is a local gang that started in the 1950‘s or 1960‘s. As of February 2015, the gang had about 30 or 40 active members and claimed territory in the western part of Cathedral City, near the border of Palm Springs. The gang‘s primary activities included burglary, robbery, carjacking, and shooting.
Members of Barrio Dream Homes had been convicted of various predicate offenses. A member named Diego Loya was convicted of robbery in 2013. A member named Anthony Vivanco was convicted of grand theft from a person, with a gang enhancement, in 2013. A member named Samuel Reyes was convicted of grand theft from a person, with a gang enhancement, in 2013. A member named Fredrico Garza was convicted of attempted murder in 2013. E.H. suffered a juvenile adjudication for assault
Officer Luna believed E.H. and A.T. were active members of Barrio Dream Homes at the time of the alleged robberies. He explained that when members of the gang commit violent crimes, like robbery, they benefit the gang by bolstering its reputation within the community for violence. He also said that crimes like burglary, robbery, and drug sales can provide a monetary benefit to the gang by bringing in money that can be used to purchase firearms “or [other] things that the gang may need.”
E. Verdict
The jury convicted E.H. of six counts of robbery and one count of active participation in a criminal street gang. (
E.H. filed a timely notice of appeal.
II
ANALYSIS
E.H. argues the trial judge erred by failing to remove witness certainty from CALCRIM No. 315‘s list of factors for the jury to consider when evaluating eyewitness identifications. Citing to case law noting that scientific studies have found a weak correlation between witness certainty and accuracy, he argues the error violated his constitutional due process rights. (E.g., People v. Sanchez (2016) 63 Cal.4th 411, 462 (Sanchez).)
The People argue we should follow the California Supreme Court‘s holding in Sanchez and find E.H.‘s argument forfeited because he did not object to the instruction or ask the trial judge to remove the certainty factor. (Sanchez, supra, 63 Cal.4th at p. 461 [“If defendant had wanted the court to modify the [eyewitness identification] instruction, he should have requested it. The trial court has no sua sponte duty to do so“].) The People argue that forfeiture is especially appropriate where, as here, inclusion of the certainty factor might have been beneficial to the defendant because the evidence “involved many identifications, . . . some [of which were] uncertain,” and “[d]efendant would surely want the jury to consider how uncertain some of the identifications were.” (Id. at p. 462.) E.H. says his claim is not forfeited because the certainty factor violated his rights to due process and therefore affected his “substantial rights” within the meaning of
The court also noted that Lemcke had the opportunity to (and did) present expert evidence on the reliability of eyewitness identification, and it also noted that the jury received other instructions tending to mitigate any correlation CALCRIM No. 315 might suggest between certainty and accuracy. Specifically, the trial court had instructed the jury that “‘[p]eople sometimes honestly . . . make mistakes about what they remember,‘” and that they were responsible for “‘judg[ing] the credibility or believability of the witnesses.‘” (Lemcke, supra, 11 Cal.5th at p. 658.) Additionally, CALCRIM No. 315 itself emphasizes that “[t]he People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime” and if they “have not met this burden, you must find the defendant not guilty.” (Lemcke, at p. 658.) Based on all of these considerations, the court concluded that “listing the witness‘s level of certainty as one of [several] factors the jury should consider when evaluating an eyewitness identification did not render [Lemcke‘s] trial fundamentally unfair or otherwise amount to a due process violation.” (Id. at p. 661.)
But even if it had been error to give the certainty factor, we see no prejudice resulting from the instruction. First of all, as noted above, none of the witnesses said they were certain about their identifications but two did express a degree of certainty when selecting E.H. from the photographic lineup. One said E.H. “might have” been one of the robbers and the other said E.H. “looked familiar.” Thus, when it came to those two witnesses, telling the jury to consider how certain the witnesses were when they made their identifications could only benefit E.H.. Second, and more importantly, the identifications were not the only—or even strongest—evidence connecting E.H. to the robberies. E.H.‘s name was mentioned multiple times in the recording recovered from the tablet, and the police caught him trying to run from the truck used in the robberies while carrying one of the stolen items. Given the compelling evidence of guilt independent of the identifications, we conclude “[i]t is not reasonably probable [E.H.] would have obtained a more favorable result had the trial court deleted the certainty factor.” (Sanchez, supra, 63 Cal.4th at p. 463.)
B. Assembly Bill 333
1. Amendments to section 186.22
Shortly before we issued our opinion in this appeal, the Legislature enacted Assembly Bill 333, which amended
The new law made three significant modifications to
As for what constitutes a “pattern of criminal gang activity,” previously the prosecution needed to prove “only that those associated with the gang had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one another.”4 (People v. Sek (Feb. 1, 2022, B309003) ___ Cal.App.5th ___ [2022 Cal.App. Lexis 82] (Sek), citing former
Finally, and perhaps most notably, Assembly Bill 333 requires the prosecution to prove the benefit the gang derives from the predicate and current offenses is “more than reputational.” (Stats. 2021, ch. 699, § 3 [enacting
In addition to these substantive changes, Assembly Bill 333 added
The parties agree, and so do we, that Assembly Bill 333‘s substantive changes apply retroactively to all cases—like E.H.‘s—in which the judgment of conviction is not yet final because the changes “redefine, to the benefit of defendants, conduct subject to criminal sanctions.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 300-301; see also In re Estrada (1965) 63 Cal.2d 744 [when a change in law reduces the punishment for a crime, defendants with nonfinal judgments are entitled to those “ameliorating benefits“]; People v. Lopez, supra, 73 Cal.App.5th at p. 344 [concluding substantive changes in Assembly Bill 333 apply retroactively because they “increase[] the threshold for conviction of the section 186.22 offense and the imposition of the enhancement“].)
The parties disagree, however, about the effect of these changes in this case. E.H. argues reversal is required because the People did not ask the jury to find at least some of the elements that Assembly Bill 333 requires, and that the prior law did not require. The People argue that instructing the jury on the former version of
Because Assembly Bill 333 essentially adds new elements to the substantive offense and enhancements in
On this record, we cannot conclude the jury instructions were harmless beyond a reasonable doubt. First, the evidence of predicate offenses the prosecution presented to establish Barrio Dream Homes‘s pattern of criminal gang activity, while sufficient at the time of trial, is insufficient under the new law. As best we can tell from the trial record, all six of the predicate offenses submitted to the jury were committed by a single gang member acting individually, rather than collectively, with at least one other gang member. Second, the jurors were permitted to consider the current offenses in determining whether the prosecution had proven a pattern of criminal gang activity, and they were not required to find the predicate offenses benefitted the gang. And third, the prosecution‘s evidence and argument focused on reputational benefit to the gang, which is also no longer permitted under amended
The proper remedy for this type of failure of proof —where newly required elements were “never tried” to the jury—is to remand and give the People an opportunity
Finally, we reject E.H.‘s argument that we must also reverse his robbery convictions because those charges were not tried separately from his gang charges, as required by new
DISPOSITION
We reverse the true findings on the offense of active gang participation (
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.