People v. JonesPeople v. Jones
I. BACKGROUND
The charges against Jones arose from a shooting that took place in the parking lot of a San Leandro apartment complex on the evening of June 16, 2013. Jones‘s defense at trial was that he was misidentified and was not the shooter.
A. The Prosecution‘s Case
1. Background: Events Prior to the Shooting
In 2013, 16-year-old P.T. lived in the complex with her aunt. Jones‘s sister, Lyndetta Jones, also lived in the complex, and Jones sometimes visited the property.
P.T. testified she had two interactions with Jones at the apartment complex prior to the date of the shooting. On the first occasion, Jones approached P.T. in the parking lot and asked for her name. Because P.T. did not know Jones and was not interested in him, she gave him a fake name, “Nancy.”
On the second occasion, which was about a week before the shooting, Jones tried to ask P.T. out. She told him to leave her alone and that she had a boyfriend. Jones persisted, and he and P.T. began cursing at each other. Jones then pulled out a gun, pointed it at P.T., and told her she should not curse at him or she would see what happens.
2. The Shooting
On June 16, 2013, around 9:00 p.m., 22-year-old Gbessaykai Massaquoi was with P.T. in his two-door Honda Civic hatchback at the San Leandro Marina. Massaquoi was smoking marijuana. P.T. and Massaquoi were friends.
Massaquoi drove the group back to San Leandro to drop P.T. off at her home. He dropped her off at a liquor store near the apartment complex, rather than at the complex. Massaquoi testified that he dropped P.T. off there only because it was convenient and because P.T. told him to. P.T. testified Massaquoi dropped her off there so that her aunt would not see her hanging out with an adult man.
After P.T. got out of the car, Massaquoi saw a man walking quickly behind her while holding a paper bag that appeared to contain a bottled drink. Massaquoi described this male as a fit Black man, five feet nine inches to five feet 10 inches tall, with short hair, and wearing a white shirt and white pants. Cedric Sallie described the man as Black, six feet tall with short hair, and no facial hair, and weighing 160 to 170 pounds. Sandip Prasad, who had moved to the front seat when P.T. got out of the car, described the African-American man following P.T. as 25 to 30 years old, six feet tall and 160 pounds, with short curly hair, and wearing a white tank top with dark jeans. Najeem Mirzada described the fit man following P.T. as Black, about six feet to six feet two inches tall, with short hair and in his mid-20‘s, and wearing a white shirt and light-colored baggie jeans.
P.T. testified Jones was the man following her. Jones came up from behind her and got close to her side, about a foot away, and tried talking to her. However, given what had happened between them previously, P.T. was nervous, scared, walking fast, and not paying attention to Jones‘s words. P.T. had testified at the preliminary hearing that Jones walked behind her.
Because Massaquoi believed the man was following P.T., he made a U-turn and drove into the apartment complex parking lot, stopping next to P.T. and asking her if she was okay. Massaquoi testified that P.T. looked scared and did not reply as she kept walking. P.T. testified that she replied ” ‘yes’ ” to Massaquoi‘s request that she call him after she got to her apartment.
After P.T. walked out of view, the man who had been following her pulled out a black gun, approached the Honda, and asked if they had a problem. Massaquoi‘s window was halfway down, and he responded he was ” ‘just trying to make sure if she‘s okay.’ ” The man replied, ” ‘Oh, yeah I know Nancy,’ ” and told them to “bounce” or leave, in an angry tone. Massaquoi put the car in reverse and heard five to six gunshots. A bullet shattered the car window, and Massaquoi was hit in the ankle and forearm. Massaquoi was able to drive to a gas station, where he and Prasad switched seats. Prasad then drove to a hospital.
A resident of the complex, Olayo Maradiaga, arrived home and was outside his apartment when he saw a Black man arguing with people in a car. The man fired three or four shots at the car and ran away. Maradiaga told officers he would not be able to identify the shooter because he had been very far away (about 60 meters) and it was already nighttime.
Heather Tackett, the property manager for the apartment complex and a resident there, was in her apartment on the evening of June 16, 2013, and heard gunshots outside. She called 911 and looked out through the blinds on her living room window. She saw someone running through the parking lot.
3. The Lineups and Witness Identifications
Sergeant Robert Young of the Alameda County Sheriff‘s Department conducted a photo lineup on June 17, 2013, the day after the shooting. In the lineup, which another officer had prepared, Jones was the number five photo in the set of six photos. P.T. identified number five, Jones, as the man who had followed her the previous evening. She did not see that person shoot a gun.
The four men who were in Massaquoi‘s car at the time of the shooting—Massaquoi, Sallie, Prasad, and Mirzada—were shown the same photo lineup on June 17, 2013, the day after the shooting. They did not identify any of the men in the photo lineup as the shooter. When Sergeant Young asked which of the people in the lineup looked ” ‘the closest’ ” to the person who shot into the car, Massaquoi chose photo numbers three and six.
Sergeant Young later received a more recent booking photo of Jones and thought he looked “completely different” from the photo used in the June 17 lineup. He used this photo to create a second lineup, this time placing Jones‘s photo in position number one. Jones was the only person who appeared in both the first and second photo lineups.
On July 28, 2013, Sergeant Young met the occupants of the Honda at a Starbucks coffee house to show them the second photo lineup. Massaquoi selected photo number one (Jones). In August 2014, Massaquoi told a deputy district attorney that he chose photo number one on July 28, 2013, because it “looked the most like” the shooter. Massaquoi also told the deputy district
At trial, however, Massaquoi identified Jones as the shooter. He also testified he was very confident in his July 28, 2013 selection of Jones‘s photo as the photo of the man who shot him. He stated he had been unable to identify Jones at the preliminary hearing because of differences in Jones‘s facial hair.
As for the other men in the car, Sandip Prasad made a “partial identification” at the second photo lineup, stating, ” ‘The person that shot my friend looked like number 1 [the photo of Jones], but with darker facial hair on the night of the shooting.’ ” Prasad did not identify Jones in court. At the Starbucks photo lineup, Cedric Sallie was unable to identify anyone other than to say that the man in photo five had “similar hair” to the shooter. Sallie could not identify Jones in court. Najeem Mirzada did not identify Jones at the Starbucks photo lineup or in court.
On July 30, 2013, Heather Tackett participated in a photo lineup. She pointed to Jones‘s photo and told police, ” ‘This is the person I saw.’ ” Tackett also identified Jones at trial as the man she saw running away from the area of the gunshots on the evening of June 16, 2013.
On July 31, 2013, Olayo Maradiaga participated in a photo lineup and picked out Jones‘s photo, stating he was ” ‘not a hundred percent sure’ ” because the shooter had been ” ‘very far away from him.’ ” Maradiaga testified both that he assumed, and did not assume, that the police had a suspect when he looked at the photo lineup. He did his best to choose the photo of the person “who looked the most like the shooter.” Maradiaga could not identify Jones at trial.
B. The Defense Case
As noted, Jones‘s defense was misidentification. Dr. Mitchell Eisen testified as an expert in witness memory. Dr. Eisen testified as to various factors that can affect the reliability of eyewitness identifications. As to the relationship between a witness‘s confidence in making an identification and the accuracy of that identification, Dr. Eisen testified: “We know that when somebody makes a choice, if it‘s a fair and unbiased task, that confidence at the time of choosing is generally related to accuracy. It‘s not perfect, it‘s not diagnostic, but it‘s generally a positive relationship, as well as speed in choosing. [¶] However, once you get—in addition to the caveats I gave you if it‘s an unfair task or if there‘s problems with the task that excuse it, more importantly, once you get outside of that box, once you get outside of that moment of choosing, then confidence isn‘t related to accuracy at all.” Dr. Eisen later reiterated: “[I]t turns out confidence at the time of the ID when it‘s a fair task is a decent indicator of accuracy, but then confidence is totally unrelated to accuracy once you get outside of that box.”
Jones‘s sister Lyndetta Jones lived at the apartment complex in June 2013, and Jones visited her a few times a week. On the evening of the shooting, June 16, Ms. Jones arrived home from work as early as 7:45 p.m. and as late as around 8:30 p.m. She did not see Jones that night. Ms. Jones heard gunshots and went outside to see what had happened.
Jones‘s friend Shanay Mallory lived down the street from the apartment complex, and Jones visited frequently in 2013. Mallory did not see Jones on the day of the shooting.
A defense investigator took photos toward the parking lot from the window of the apartment where Tackett had lived at the time of the shooting. He was unable to see the facial features of people standing about 90 feet away at night.
C. Procedural Background: The Charges, Verdicts, and Sentence
An information filed in October 2014 charged Jones with four counts of attempted murder (counts 1–4;
In February 2016, the jury found Jones guilty of the attempted murder of Massaquoi as charged in count 1 and found true the associated firearm enhancements. The jury found Jones not guilty of the attempted murders of Sallie, Prasad, and Mirzada as charged in counts 2 through 4. The jury found Jones guilty of all four counts of assault with a semiautomatic firearm (counts 5 through 8) and the firearm enhancements for those counts, as well as the count 9 charge of shooting at an occupied vehicle and the count 10 charge of being a felon in possession of a firearm. Jones waived his right to a jury trial on the prior conviction allegation, and the court found the
On December 16, 2019, nearly four years after the jury verdict, Jones, now represented by a different attorney, filed a motion for new trial. On February 28, 2020, the court denied the motion for new trial and sentenced Jones to 56 years in prison, with credit for 2,398 days of actual time served, plus additional conduct credit. Jones appealed.
In April 2020, the court filed amended minutes and an amended abstract of judgment revising its sentencing calculations and reflecting that it had sentenced Jones to 59 years in prison, determined as follows: On the count 1 attempted murder conviction (
The court imposed a consecutive 20-year term for the count 1 enhancement that during the commission of the attempted murder Jones personally and intentionally discharged a firearm (
II. DISCUSSION
A. The Inclusion of Witness Certainty as a Factor in the Instruction on Eyewitness Identification Evidence Did Not Violate Jones‘s Due Process Rights
The trial court instructed the jurors with a version of CALCRIM No. 315, which listed 14 factors they should consider when evaluating eyewitness identification evidence. One of the factors was: “How certain was the witness when he or she made an identification?”4
In People v. Lemcke (2021) 11 Cal.5th 644, 646 (Lemcke), our Supreme Court rejected a similar due process claim arising from CALCRIM No. 315. The court outlined the governing standard: ” ‘The touchstone of due process is fundamental fairness.’ [Citations.] A jury instruction may ’ “so infuse[] the trial with unfairness as to deny due process of law.” ’ [Citation.] However, ’ “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ’ “whether the ailing
As to the challenge in that case, the Lemcke court rejected the claim by a defendant there (Rudd) that the witness certainty factor in CALCRIM No. 315 violated his due process rights. (Lemcke, supra, 11 Cal.5th at p. 646.) The court determined that, when considered in light of the trial record as a whole (including expert testimony presented by the defense and other instructions given to the jury), inclusion of the certainty factor in CALCRIM No. 315 did not render the defendant‘s trial fundamentally unfair. (Lemcke, at pp. 646–647, 661; see People v. Wright (2021) 12 Cal.5th 419, 452–453 [applying Lemcke and rejecting due process challenge to analogous instruction, CALJIC No. 2.92].)
Although it found no due process violation, the Lemcke court concluded that reevaluation of “the certainty instruction” was warranted, because empirical research shows that ” ‘eyewitness confidence is generally an unreliable indicator of accuracy.’ ” (Lemcke, supra, 11 Cal.5th at p. 647.) The court referred the issue to the Judicial Council and its Advisory Committee on Criminal Jury Instructions “to evaluate whether or how the instruction might be modified to avoid juror confusion regarding the correlation between certainty and accuracy.” (Ibid.) Finally, the Supreme Court in Lemcke, acting pursuant to its supervisory powers, directed that “until the Judicial Council has completed its evaluation, trial courts should omit the certainty
Here, we conclude that, for many of the same reasons present in Lemcke, the inclusion of the certainty factor as one of 14 listed in CALCRIM No. 315 did not render Jones‘s trial fundamentally unfair or violate his due process rights.6 As outlined by the Lemcke court, the defendant there argued that “instructing the jury to consider an eyewitness‘s level of certainty, without clarifying the limited correlation between certainty and accuracy, violates due process in two ways. First, the instruction ‘lowers the prosecution‘s burden of proof’ by causing jurors to ‘equat[e] certainty with accuracy, when science establishes otherwise.’ Second, the instruction denies the defendant ‘a “meaningful opportunity to present a complete defense” ’ as to ‘why the identification was flawed . . . .’ ” (Lemcke, supra, 11 Cal.5th at p. 657.)
The Lemcke court noted “the wording of the instruction might cause some jurors to infer that certainty is generally correlative of accuracy,” but the court emphasized the defendant “was permitted to present expert witness testimony to combat that inference.” (Lemcke, supra, 11 Cal.5th at pp. 657–658.) Dr. Mitchell Eisen (the same expert who testified at Jones‘s trial) testified in Lemcke “that the only time certainty may be useful in assessing accuracy is when the identification is made in close temporal proximity to the event and law enforcement has utilized nonsuggestive procedures. According to Eisen, ‘outside that window, . . . confidence is not related to accuracy in any regard.’ Eisen emphasized that in-trial identification testimony is particularly meaningless because it does not ‘reflect[] memory.’ Eisen also described the procedures law enforcement should follow to ensure an accurate identification and answered a series of hypothetical questions that were designed to show those procedures were not followed in this case.” (Id. at p. 658.)
Also in support of its conclusion that CALCRIM No. 315 did not lower the prosecution‘s burden of proof, the Lemcke court pointed to the language of that instruction and several other instructions given to the jury. CALCRIM
The same factors identified in Lemcke are present in this case, and we conclude the inclusion of the witness certainty factor in CALCRIM No. 315 did not lower the prosecution‘s burden of proof or otherwise violate due process here.7 Dr. Eisen testified at Jones‘s trial (as he did in Lemcke) that,
Jones argues that, in contrast to Lemcke, the inclusion of the certainty factor in CALCRIM No. 315 did render his trial fundamentally unfair and thus violated his due process rights. He contends Dr. Eisen “testified less definitively” in his case than in Lemcke about the limited correlation of witness certainty and accuracy. We disagree. In both Lemcke and the present case, Dr. Eisen testified that a witness‘s early expression of certainty is related to accuracy when the identification procedure is fair and unbiased. (Lemcke, supra, 11 Cal.5th at pp. 651–652, 658.) Dr. Eisen also testified here, similar to his testimony in Lemcke, that certainty is not indicative of accuracy when there is a biased procedure or when time has passed since the
Jones also notes that, on cross-examination in the present case, the prosecutor asked Dr. Eisen about the factors listed in CALCRIM No. 315. Dr. Eisen stated the listed factors “are basically studied factors because they‘re commonsensically related.” Dr. Eisen further stated: “This is what the Supreme Court decided in the ‘70s, before a lot of this research, commonsensically jurors should consider when evaluating eyewitness testimony.” Jones is incorrect in suggesting Dr. Eisen‘s descriptive statements about the factors listed in the pattern instruction somehow amounted to an endorsement of them. We do not agree that Dr. Eisen‘s testimony here was less helpful to the defense than the testimony he provided in Lemcke, or that any distinctions between his testimonies on the two occasions resulted in a due process violation. The testimony in each case allowed the defense to “combat” the possible inference that “some jurors” “might” draw from CALCRIM No. 315 “that certainty is generally correlative of accuracy.” (Lemcke, supra, 11 Cal.5th at pp. 657–658.)
Jones‘s remaining arguments are not persuasive. He contends the direction in CALCRIM No. 332 (an instruction cited in Lemcke) that the jury is to consider the opinions of experts served here to reinforce the allegedly lukewarm nature of Dr. Eisen‘s testimony. As discussed, we disagree with Jones‘s characterization of that testimony. Neither the expert testimony nor
Jones also notes that the prosecutor in closing argument stressed P.T.‘s and Tackett‘s certainty in their identifications, along with Massaquoi‘s positive identification in court. The prosecutor also mentioned CALCRIM No. 315‘s certainty factor, along with several of the other factors listed in the instruction. Jones suggests this point was argued less forcefully by the prosecutor in Lemcke, but (as summarized by the Supreme Court) the prosecutor there too noted the sole eyewitness had been consistent in identifying the defendants, and pointed to several of the factors in CALCRIM No. 315, including the certainty factor. (Lemcke, supra, 11 Cal.5th at p. 652.) Moreover, as the Attorney General notes, Jones‘s trial counsel in his summation attacked the reliability of the identifications of Jones and emphasized the instances where witnesses did not identify him. In this context and in light of the record as a whole, we do not agree with Jones that the arguably problematic certainty factor (again, one of 14 listed in CALCRIM No. 315 for the jurors to consider and weigh as they saw fit) infected the entire trial so as to render it fundamentally unfair.
Finally, Jones argues the questions from the jurors (asking for readback of P.T.‘s and Tackett‘s testimony) and the length of their deliberations (which he calculates at 19 hours) suggest that the case was close and that witness certainty “likely played an important role” in the jurors’ decision. As the Attorney General notes and as Jones appears to acknowledge, the purported closeness of the identification issue would not on its own establish a violation of due process. In light of the factors we have discussed above—including Dr. Eisen‘s testimony, the full set of instructions
B. Alleged Pitchess Error
Jones argues (1) the court erred by denying his pretrial motion for discovery of information in police personnel records pursuant to Pitchess, (2) the court erred by denying his new trial motion alleging in part that the pretrial Pitchess ruling was error, and (3) to the extent it would not have been futile for his trial counsel to renew the Pitchess motion during trial, his counsel provided ineffective assistance by failing to do so. We reject these arguments.
1. Additional Background
On November 16, 2015, prior to trial, Jones filed a Pitchess motion alleging intentional suggestiveness in the photo lineup procedures, through either words or actions, by Alameda County Sheriff‘s Office Deputies Robert Young and Gustavo Mora. County counsel filed an opposition arguing the motion was overbroad and otherwise defective, including for failure to file a declaration showing good cause for the discovery (see
Jones alleged (in his initial motion and by incorporation in his supplemental motion) that Deputy Young conducted an unfairly suggestive second photo lineup with the four occupants of the car, where Jones was the only person to appear in both lineups. Jones also suggested improper
In his supplemental motion, Jones included additional allegations about Young. Jones pointed to evidence Heather Tackett had stated (and testified at the preliminary hearing) that she made her observations from inside her apartment, but in an affidavit for a search warrant for DNA evidence, Deputy Young averred that Tackett went outside her apartment where she saw Jones, who then drove away in a car. Jones also stated that Young would testify Massaquoi had identified Jones at a lineup, but that Massaquoi denied having made an identification.
In his declaration in support of the supplemental motion, defense counsel stated it would be Jones‘s position at trial that Deputy Young “conducted a lineup that was purposely suggestive.” But the declaration‘s principal focus was a broader assertion that Deputy Young‘s veracity was a significant issue in the case. In that regard, the declaration stated that a question at trial would be whether Young falsely represented that Massaquoi had identified Jones at the unrecorded second lineup, which Massaquoi denied having done. As another example of the importance of Deputy Young‘s veracity, the declaration pointed to Young‘s statement in his search warrant affidavit that Tackett was outside her apartment when she saw Jones and that she saw him drive away, a version of events that was inconsistent with Tackett‘s prior testimony.8
Notes
As noted, the information did also allege that Jones had served a prior prison term, which would have triggered a one-year enhancement under section 667.5, former subdivision (b). That enhancement was not imposed here, and the prior prison term Jones served for his 2004 carjacking conviction no longer provided a basis for a section 667.5, subdivision (b) one-year term by the time of Jones‘s February 2020 sentencing. (See § 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1 [authorizing additional one-year term only where defendant‘s prior prison term was for a sexually violent offense].)