People v. Hall CA4/2 ( 2021 )

Filed 10/27/21 P. v. Hall 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072463
v. (Super.Ct.Nos. INF1500253 &
INF1500502)
ELIJAH TIREK HALL et al.,
OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Russell L. Moore, Judge.
Affirmed.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and
Appellant Elijah Hall.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and
Appellant Anthony Torres.
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Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Elijah Hall appealed from a judgment entered after a jury convicted him of various
gang-related offenses (committed when he was 15 years old) and the trial judge
sentenced him to 65 years to life in state prison. While Hall’s appeal was pending,
Proposition 57 raised the minimum age a minor can be tried as an adult to age 16. (Sen.
Bill No. 1391 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1012, § 1).) Following the
procedure approved in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), the
trial judge recalled Hall’s sentence and transferred his case to juvenile court, where the
judge “treat[ed the] convictions as juvenile adjudications” and held a hearing to impose
an appropriate disposition. (Id. at p. 310; see also Welf. & Inst. Code, §§ 602, 702, 706.)
After that hearing and his transfer to the Department of Juvenile Justice, Hall informed us
he wished to proceed with his appeal, which we have reinstated as an appeal from a
judgment in a juvenile criminal proceeding. (Welf. & Inst. Code, §800.)
Hall’s challenge is aimed at the fairness of the underlying jury trial that serves as
the basis for his juvenile adjudications. 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. (CALCRIM No. 315.) Because the
California Supreme Court recently rejected this argument and concluded CALCRIM No.
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315’s certainty factor does not violate due process (People v. Lemcke (2021) 11 Cal.5th
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644 (Lemcke)), we affirm the judgment.
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 Ismael responded that he didn’t, Hall’s codefendant Torres got
out of the truck. Torres demanded Ismael empty his pockets, and Hall hit Ismael in the
face with a rifle. More people got out of the truck then, all armed with weapons. Ismael
emptied his pockets and handed over his belongings, and the group began to beat him.
When Ismael’s wife noticed what was happening, she yelled through the window that she
was calling the police. The group got back into the truck and fled.
B. Home Invasion Robbery of Multiple Victims
Shortly after robbing Ismael, the group went to the home of Duane S., barged into
the bedroom where Duane was hanging out with his brother and his girlfriend, and
demanded everyone empty their pockets. One of the members of the group said he was
1Hall’s codefendant, Anthony Torres, filed an appeal raising the same argument
Hall makes here, but he abandoned his challenge after our Supreme Court issued their
decision in Lemcke.
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from “Dream Homes” (another local 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, Hall 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 Hall and Torres 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. The group 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.
When officers near the area spotted a truck matching that description, the driver
refused to pull over. This initiated a relatively brief pursuit that ended when the driver
crashed into a curb, sending the occupants scattering in an attempt to hide. The officers
found Hall crouched in a nearby bush, carrying a cellphone that belonged to one of the
victims. Police recovered the rest of the stolen property inside the truck, including the
tablet Duane had been rapping into, which continued to record after the group stole it,
picking up their discussion of the robbery they’d just committed. The prosecution played
this recording for the jury, and Hall’s first name, Elijah, can be heard a number of times.
The prosecution also presented evidence that Hall and Torres were members of the
Cathedral City gang Dream Homes.
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C. Eyewitness Identifications
The same night as the robberies, three of the victims identified Hall as one of the
perpetrators from a photographic lineup. These three victims also identified Hall in court
during their trial testimony. Two other victims gave a qualified identification of Hall
from a photographic lineup. One said Hall “might have been” one of the robbers. The
other said Hall “looked familiar”; however, during trial he identified Hall as one of the
perpetrators.
Without an objection or request for modification from Hall, 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
testimony, consider the following questions: [¶] ... [¶] How certain was the witness when
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he or she made an identification?” (CALCRIM No. 315.)
2 The other 14 factors are: “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
[footnote continued on next page]
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D. Verdict
The jury convicted Hall of six counts of robbery and one count of active
participation in a criminal street gang. (Pen. Code, §§ 211, 186.22, subd. (a).) As to the
robbery counts, the jury also found true that the crimes were committed for the benefit of
a criminal street gang (id., § 186.22, subd, (b)), that Hall personally used a firearm (id.,
§ 12022.53, subd. (b)), and that a principal personally used a firearm (id., § 12022.53,
subd. (e)). As noted, the trial judge sentenced Hall to state prison but later recalled his
sentence and transferred his case to juvenile court for a disposition hearing. (See Lara,
supra, 4 Cal.5th at p. 310; Welf. & Inst. Code, §§ 602, 702, 706.)
Hall filed a timely notice of appeal.
II
ANALYSIS
Hall 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 witness ever change his or her mind about the 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 or physical
lineup?”; and “Were there any other circumstances affecting the witness’s ability to make
an accurate identification?” (CALCRIM No. 315.)
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The People argue we should follow the California Supreme Court’s holding in
Sanchez and find Hall’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.) Hall
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 Penal Code
section 1259. (See People v. Anderson (2007) 152 Cal.App.4th 919, 927 [“Failure to
object to instructional error forfeits the issue on appeal unless the error affects
defendant’s substantial rights”].)
The People’s argument is well taken. Our Supreme Court has held that this is
precisely the type of challenge that can be forfeited if not raised during trial, and while
none of the witnesses who identified Hall were asked whether they were certain about the
identification or volunteered that they were, two of them expressed a degree of
uncertainty. But more fundamentally, Hall’s argument for avoiding forfeiture fails for the
same reason his challenge fails on the merits—his substantial rights weren’t affected
because the instruction doesn’t violate due process. While this appeal was pending, our
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Supreme Court decided Lemcke, in which it concluded CALCRIM No. 315’s certainty
factor does not violate due process even though empirical research shows that confidence
in a witness identification is generally not a reliable indicator of accuracy. (Lemcke,
supra, 11 Cal.5th at p. 644.) The court based its decision on a number of considerations,
including that the factor does not equate certainty with accuracy and that it is just one of
several other factors for evaluating the credibility of a witness identification. (Id. at
p. 657.) “[W]e find nothing in CALCRIM No. 315’s instruction on witness certainty that
operates to ‘lower the prosecution’s burden of proof.’ . . . [T]he instruction does not
direct the jury that ‘certainty equals accuracy.’ [Citation.] Nor does the instruction state
that the jury must presume an identification is accurate if the eyewitness has expressed
certainty. [Citation.] Instead, the instruction merely lists the witness’s level of certainty at
the time of identification as one of 15 different factors that the jury should consider when
evaluating the credibility and accuracy of eyewitness testimony. The instruction leaves
the jury to decide whether the witness expressed a credible claim of certainty and what
weight, if any, should be placed on that certainty in relation to the numerous other factors
listed in CALCRIM No. 315. Indeed, even [the defendant] acknowledges that, on its face,
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the instruction is ‘superficially neutral.’” (Ibid.)
3 Despite finding no due process violation, the court acknowledged the
instruction’s potential to mislead jurors about the relationship between certainty and
accuracy and therefore used its supervisory powers to direct “trial courts to omit the
certainty factor from CALCRIM No. 315 until the Judicial Council has the opportunity to
consider how the language might be better worded to minimize juror confusion on this
point.” (Lemcke, supra, 11 Cal.5th at p. 669.)
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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.)
Lemcke’s holding applies squarely to this case. During Hall’s trial, the judge gave
the jury the same additional instructions on witness testimony and the prosecution’s
burden of proof that were given in Lemcke, and there was nothing to stop Hall from
presenting expert evidence on eyewitness identification. We therefore reject his claim of
instructional error.
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
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were certain about their identifications but two did express a degree of certainty when
selecting Hall from the photographic lineup. One said Hall “might have” been one of the
robbers and the other said Hall “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 Hall. Second, and more importantly, the
identifications were not the only—or even strongest—evidence connecting Hall to the
robberies. Hall’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 [Hall] would have
obtained a more favorable result had the trial court deleted the certainty factor.”
(Sanchez, supra, 63 Cal.4th at p. 463.)
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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