People v. Austin CA4/2 ( 2021 )

Filed 10/22/21 P. v. Austin CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073184
v. (Super.Ct.No. FSB18001197)
TERRELL TRAVON AUSTIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.
Taylor and James H. Flaherty, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Terrell Travon Austin was convicted of murder and
attempted murder, among other crimes and enhancements. He raises two contentions on
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appeal: (1) that the trial court erroneously excluded evidence that the attempted murder
victim had once shot himself during a robbery but claimed to police to be a victim; and
(2) that the jury should not have been given CALCRIM No. 315, which instructs a jury to
consider an eyewitness’s degree of certainty, among over a dozen other factors, in
evaluating the credibility of that eyewitness’s identification. During the pendency of this
appeal, our Supreme Court decided People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke),
which held that the use of CALCRIM No. 315 did not violate the defendant’s right to due
process on the record before it, even though “trial courts should omit the certainty factor
from CALCRIM No. 315” until the Judicial Council of California finished a reevaluation
of the instruction. (Lemcke, supra, 11 Cal.5th at p. 648.)
We reject Austin’s contentions and affirm. The trial court did not abuse its
discretion in excluding the evidence and, following Lemcke, we find no due process
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violation from the use of CALCRIM No. 315 here.
I. BACKGROUND
In January 2018, Jermoni Stewart and his friend Jordan Bass were sitting on jet
skis parked in the driveway of Bass’s mother’s house in San Bernardino when two men
walked toward them. One of those men threw what Bass believed to be a potential gang
sign. Bass, noticing that the two men were pulling out guns, ducked underneath one of
the jet skis.
1
Undesignated statutory references are to the Penal Code.
2
The assailants opened fire. Investigators recovered 13 casings from two guns at
the scene. Stewart was struck five times, including twice in the head, and died within
minutes. Bass was shot multiple times but survived. Bass stated there was no one else
nearby at the time.
Neighbors testified as to seeing two men walking down the street, hearing gunfire,
and seeing the two men run toward a vehicle before speeding off. However, none of
those neighbors could identify Austin as one of the men.
About a week after the shooting, Bass was presented with a photographic lineup,
and when shown a picture of Austin, Bass remarked that Austin “would look more like”
one of the assailants “if he was darker and shorter.” At trial, when asked whether he
recognized anybody in the courtroom as one of the shooters, Bass replied that he could
not. Bass admitted, however, that he had identified Austin as one of the shooters in
another court proceeding only a few days prior. Bass also stated that, the previous year,
he saw Austin in a courtroom and believed Austin was one of the shooters. As Bass
stated at trial, that identification was based on “[n]ot only just skin color, but just an
inside feeling. Like, I just felt like it was him. I felt, like—I remember seeing a real
quick, like, a flashback almost.”
Forensic evidence linked Austin to the shooting. While examining the scene after
the shooting, investigators observed a trail of blood that started two houses away and
ended near a stop sign. DNA samples taken from along the trail matched Austin’s DNA.
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A DNA sample taken from the beginning of the trail matched Austin’s DNA as well as
Stewart’s.
On the day of the shooting, Austin went to a hospital to receive treatment for a
gunshot wound to his left ankle. Austin told an interviewing officer that he was in
Fontana when he heard two gunshots behind him and started running. At trial, the officer
testified that Austin’s wound was at the top of his ankle, not the back, that there was no
blood splatter on his jeans, and that he had no shoes. Austin first told the officer that he
had no shoes because he was homeless. Later, Austin told the officer that he did have
shoes but “ran out of them” when he was shot. Officers went to the place where Austin
said the shooting occurred but could not find witnesses or evidence corroborating his
account.
Austin testified in his own defense at trial. Austin admitted that he was at the
scene (i.e., in San Bernardino) when the shooting occurred but stated that he was just a
bystander. He also stated that he did not tell the officer where his shoes were—his
mother’s house—because he did not want the officer to go to his mother’s house, as a
cousin was staying there and may have had an outstanding warrant.
Austin’s fiancée testified as well, stating that she had dropped him off in Fontana
on the day of the shooting. Austin took the stand again afterward and testified that his
fiancée was lying.
The jury convicted Austin, as charged, of murder (§ 187, subd. (a)), attempted
murder (§§ 187, subd. (a), 664), and felon in possession of a firearm (§ 29800, subd. (a)).
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2
The jury found true all but one of the special allegations it was asked to decide. Upon
Austin’s waiver of a right to jury trial on the matter, the trial court found true the
allegation that he had a prior strike. The trial court sentenced Austin to a total term of
109 years to life.
II. DISCUSSION
Austin contends that the trial court erroneously excluded evidence that Bass, the
attempted murder victim, had once shot himself during a robbery and later claimed to be
a victim, even though the trial court allowed the jury to hear a stipulation that Bass “was
convicted of a felony theft stemming from an incident on April 25, 2017” and had
“falsely claimed he was a victim when he was, in fact, the person who had committed the
theft.” In other words, it was the fact that Bass shot himself during the robbery that
Austin contends should have been admitted. Austin also contends that the jury should
not have been given CALCRIM No. 315 when evaluating Bass’s identification of Austin
as the shooter. As we explain, we find no merit in either contention.
2
For both the murder and the attempted murder, the special allegations were that
Austin personally used a firearm, personally and intentionally discharged a firearm, and
personally and intentionally discharged a firearm causing great bodily injury or death
(§ 12022.53, subds. (b)-(d).) Austin also was alleged to have committed the attempted
murder willfully, deliberately, and with premeditation (§ 664, subd. (a)). The jury found
not true the allegation that in the attempted murder Austin personally and intentionally
discharged a firearm causing great bodily injury or death, but it found all other
allegations true.
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A. Robbery Evidence
Before trial, Austin filed a motion in limine to “admit evidence regarding witness
Jordan Bass’ February 16, 2018 prior conviction for PC 211, robbery, in which Mr. Bass
shot himself during the course of robbing someone and lied about it, as such evidence is
relevant to Mr. Bass’ character for truthfulness.” Austin asserted that such evidence
“should be permitted without ‘opening the door’ to the defendant’s character for
violence, as outlined in California Evidence Code Section 1103, as the defense offers
such evidence as a reflection of Mr. Bass’ character for truthfulness, not his character for
violence.” After hearing argument, the trial court ruled that it was “going to exclude any
reference to the firearm as part of the robbery incident.” It added: “No mention that he
shot himself. You can mention, obviously that he claimed that he was the victim when,
in fact, he was the perpetrator. And leave it at that.” The parties then agreed to the
stipulation noted above, which the court read to the jury.
“We review a trial court’s decision to exclude evidence for abuse of discretion.
[Citation.] The decision to exclude evidence ‘will not be disturbed except on a showing
[that] the trial court exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice [citation].’” (People v. Peoples
(2016) 62 Cal.4th 718, 745.)
Austin contends that the fact that Bass had shot himself was admissible under
Evidence Code sections 1101, subdivision (c), and 1103, subdivision (a). This is correct,
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but these sections merely mean that the evidence was not inadmissible, which is not the
same as meaning that the evidence must have (or should have) been admitted.
Evidence Code section 1101, subdivision (a) generally provides that “evidence of
a person’s character . . . is inadmissible when offered to prove his or her conduct on a
specific occasion.” Subdivision (c), however, provides a relevant exception, stating that
“[n]othing in this section affects the admissibility of evidence offered to support or attack
the credibility of a witness.” Similarly, Evidence Code section 1103, subdivision (a)
states that “[i]n a criminal action, evidence of the character . . . of the victim of the crime
for which the defendant is being prosecuted is not made inadmissible by [Evidence Code]
Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the
victim in conformity with the character or trait of character.”
The fact that the evidence here—that Bass shot himself during a robbery—was not
barred by Evidence Code sections 1101 and 1103 does not mean that it must have been
admitted. Evidence must be relevant to be admissible (Evid. Code, § 210), and the fact
that Bass shot himself during the robbery was not relevant to credibility or truthfulness.
The jury heard a sanitized version of the evidence, which was that Bass falsely
claimed he was a victim of a felony when he was actually the perpetrator. Austin’s
observation on appeal that Bass was willing to lie “in a situation where he had been shot”
is inconsequential; such a fact does nothing more to undermine Bass’s credibility than
what the jury heard. Austin offers no reason for us to conclude, for example, that as
much as it takes a person to lie about a felony, it takes an even greater liar to lie about
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being shot. Much the same is true with Austin’s statement that the evidence showed
Bass’s “propensity to lie to the police to minimize his involvement in a crime”; what the
jury heard already conveyed this propensity, and the specific fact that Bass was shot
3
would not have demonstrated any heightened propensity.
Austin contends that the evidence showed Bass “may have actually returned fire at
his assailants, or that Stewart had fired a weapon before being killed.” But this is
separate from an argument that the evidence was relevant to show Bass’s truthfulness,
and because Austin did not propose this alternative basis for impeachment in trial court,
he may not do so here. (See People v. Alvarez (1996) 14 Cal.4th 155, 200 [defendant
“may not offer an argument here that such evidence would have been relevant for
impeachment because he did not offer any to that effect below”].) Additionally, Austin’s
arguments that the evidence was relevant to bolster his story that he was a bystander and
to show reasonable doubt that he was armed both fail, as they assume that the evidence
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was originally offered to show that Bass or Stewart may have been armed.
3
The jury heard other evidence about Bass’s credibility as well, as Bass testified
that he initially identified himself to police using his brother’s name and date of birth
after the shooting because he was trying to hide the fact that he had a warrant.
4
Austin does not raise an ineffective assistance of counsel claim, but we note that
such a claim would likely have failed, as Austin’s trial counsel had a reasonable, tactical
goal of preventing the prosecution from introducing evidence of Austin’s prior criminal
history with firearms. (See People v. Mai (2013) 57 Cal.4th 986, 1009 [“a reviewing
court defers to counsel’s reasonable tactical decisions” when reviewing an effective
assistance claim]; Evid. Code, § 1103, subd. (b) [introducing victim’s trait of character
for violence opens the door to showing the same for defendant].) It is likely that Austin’s
use of the evidence for a character trait would have opened the door to his prior
[footnote continued on next page]
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Accordingly, we find no abuse of discretion.
B. CALCRIM No. 315
Austin contends that the trial court violated his constitutional right to due process
by instructing the jury that it could consider a witness’s certainty in evaluating that
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witness’s credibility when identifying a defendant. We find no violation.
As an initial matter, we decline to find the issue forfeited, even though Austin did
not object to the instruction in trial court. “‘[R]eviewing courts have traditionally
excused parties for failing to raise an issue at trial where an objection would have been
conviction involving firearms as well. Separately, and in any event, evidence that Bass
previously shot himself during a robbery, in isolation, has no bearing whatsoever on
whether Stewart fired a weapon before being killed, despite what Austin claims.
5
The instruction as given to the jury reads as follows, with the portion at issue
here italicized: “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 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 duration of 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 a 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 or she made an identification? [¶] • Are the witness and the
defendant of different races? [¶] • Was the witness able to identify other participants in
the crime? [¶] • Was the witness able to identify the defendant in a photographic lineup?
[¶] • Were there any other circumstances affecting the witness’s ability to make an
accurate identification? [¶] The People have the burden of proving beyond a reasonable
doubt that it was the defendant who committed the crime. If the People have not met this
burden, you must find the defendant not guilty.”
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futile or wholly unsupported by substantive law then in existence.’” (People v. Brooks
(2017) 3 Cal.5th 1, 92.) At the time of Austin’s trial, our Supreme Court had approved of
the instruction on the eyewitness certainty factor. (See People v. Sanchez (2016) 63
Cal.4th 411, 461-462.) The trial court would therefore have been bound to reject any
argument against the instruction.
On the merits, as noted earlier, our Supreme Court has recently reconsidered
CALCRIM No. 315’s certainty factor in Lemcke. Lemcke rejected the defendant’s
argument that the instruction violated his due process rights. (Lemcke, 11 Cal.5th at pp.
646-647, 654-661.) The Court nevertheless acknowledged that the instruction had “the
potential to mislead jurors,” given the “near unanimity in the empirical research that
‘“under most circumstances, witness confidence or certainty is not a good indicator of
identification accuracy.”’” (Id. at p. 665.) But because of the complexities involved in
determining how to revise the instruction, the court stopped short of attempting to rewrite
it. (Id. at p. 668.) Instead, the Court referred the matter to the Judicial Council and the
council’s 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.” (Id. at p. 647; see also id. at p. 668.) In addition, the
court exercised its supervisory powers to “direct that until the Judicial Council has
completed its evaluation, trial courts should omit the certainty factor from CALCRIM
No. 315 unless the defendant requests otherwise.” (Lemcke, supra, 11 Cal.5th at pp. 647-
648; see also id. at p. 669.)
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For the reasons set forth in Lemcke, we reject Austin’s argument that his due
process rights were violated. The instruction given here did not expressly equate
certainty with accuracy. (See Lemcke, supra, 11 Cal.5th at p. 657.) Even if it were
susceptible to that interpretation, Austin could have proffered expert testimony
combating the interpretation, as the defendant in Lemcke did. (See id. at pp. 657-658.)
Moreover, other instructions given to the jury undercut any argument that the certainty
instruction lowered the People’s burden of proof. (See id. at p. 658.) The trial court
instructed the jurors that Austin was presumed innocent and that the People had the
burden of proving guilt beyond a reasonable doubt. (See CALCRIM No. 220; Lemcke, at
p. 658.) The trial court further instructed the jury that “[p]eople sometimes honestly . . .
make mistakes about what they remember” (see CALCRIM No. 226), that the jury was
responsible for “judg[ing] the credibility or believability of the witnesses” (see ibid.), and
that the People had “‘the burden of proving beyond a reasonable doubt that it was
[Austin] who committed the crime’” (see CALCRIM No. 315; Lemcke, at p. 658 [noting
that inclusion of same instructions allowed the jury to “‘remain[] free to exercise its
collective judgment to reject what it did not find trustworthy or plausible’”]). And Austin
had an opportunity to cross-examine Bass, the witness Austin here argues identified him
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with certainty. (See id. at p. 660.)
6
Austin contends that Bass “unwaveringly believed” Austin was one of the
shooters at trial, but Bass’s certainty at trial was ambiguous at best. As noted, when Bass
was asked whether he recognized anybody in the courtroom as one of the shooters, Bass
said he could not, even though he soon thereafter identified Austin as someone he
previously identified as one of the shooters. Furthermore, Bass’s first identification of
[footnote continued on next page]
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We therefore find that CALCRIM No. 315 did not violate Austin’s due process
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rights . (Lemcke, supra, 11 Cal.5th at p. 661.)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
MILLER
Acting P.J.
SLOUGH
J.
Austin was even less certain. When shown a picture of Austin during a photographic
lineup approximately a week after the shooting, Bass stated that Austin “would look more
like” one of the suspects “if he was darker and shorter.”
7
Because Lemcke was decided during the pendency of this appeal, we allowed
the parties to file supplemental briefs addressing the case. Austin filed a supplemental
brief, which we have read and considered.
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