People v. Yanez CA6 ( 2021 )

Filed 10/27/21 P. v. Yanez CA6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H044528
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1518651)
v.
JESSE VICTOR YANEZ,
Defendant and Appellant.
Following a trial, defendant Jesse Victor Yanez was convicted of four counts of
second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))1 and one count of assault
with a firearm (§ 245, subd. (a)(2)). The jury found the firearm enhancement allegations
attached to each of those robbery counts to be true. The court found true a Three Strikes
allegation (§§ 667, subds. (b)-(i); 1170.12), a prior serious felony enhancement allegation
(§ 667, subd. (a) (667(a)), and two prior prison term enhancement allegations (§ 667.5,
subd. (b)). Defendant was found not guilty of committing a robbery of a female victim
on or about June 9, 2015, as charged in count 3. The trial court sentenced defendant to a
total of 36 years in prison and imposed on him certain financial obligations, including a
mandatory minimum restitution fine of $300, a mandatory court operations assessment of
1
All further statutory references are to the Penal Code unless otherwise specified.
$200 (§ 1465.8 [$40 per criminal conviction]), and a mandatory court facilities
assessment of $150 (Gov. Code, § 70373 [$30 per felony conviction]).2
On appeal, defendant contends that the prosecutor engaged in prejudicial
misconduct during closing argument by offering his personal knowledge as to the usual
behavior of robbers after they have made “a successful score” or “heist.” Defendant
asserts that defense counsel provided ineffective assistance by failing to object to that
prosecutorial misconduct. He also asserts that the trial court (1) violated his due process
rights under the Fourteenth Amendment to the United States Constitution by instructing
the jury pursuant to CALCRIM No. 315 that it could consider the witness’s level of
certainty in evaluating a witness’s identification testimony and (2) erred by not staying
punishment on the assault conviction under section 654. Defendant argues that this court
must remand the case to allow the superior court to (1) exercise its new discretion to
strike the 10-year firearm enhancement (§ 12022.53, subd. (b) (12022.53(b)); (2) exercise
its new discretion to strike the five-year enhancement for a prior serious felony
conviction pursuant to section 1385, as amended; and (3) hold a hearing on his ability to
pay the court facilities assessment (Gov. Code, § 70373), the court operations assessment
(§ 1465.8), and the restitution fine (§ 1202.4. subds. (b), (c)) pursuant to People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Lastly, defendant maintains that the
abstract of judgment must be amended to accurately reflect the firearm enhancements
attached to counts 1, 2, 4, and 5. We reverse the judgment and remand for resentencing.
I. PROCEDURAL BACKGROUND
An information charged defendant with four counts of second degree robbery
(counts 1-4) and one count of assault with a firearm (count 5).3 The offenses were
2
At sentencing, the trial court referred to the court operations assessment as a
court security fee and to the court facilities assessment as a criminal conviction
assessment.
3
Steven Frank Jaramillo was charged as a codefendant in counts 1-2 and 4-5 of
the original information.
2
alleged to have occurred in June or July of 2015. As to counts 1 through 4, defendant
was alleged to have been armed with a firearm within the meaning of section 12022,
subdivision (a)(1)). The information alleged that defendant had a prior conviction within
the meaning of the Three Strikes law (§§ 667, subd. (b)-(i); 1170.12) and a prior serious
felony conviction (§ 667(a)) based on the same prior robbery conviction. It also alleged
that he had two prior prison terms within the meaning of section 667.5, subdivision (b).
On August 23, 2016, the court stated for the record that the People had submitted a
first amended information and asked the prosecutor to state the changes for the record.
The prosecutor indicated that the first amended information charged defendant with a
second degree robbery committed on June 18, 2015 in a new count 4, which had
inadvertently been omitted from the original information, to conform to the complaint
and proof presented at the preliminary examination. The prosecutor indicated that as to
count 3 and the new count 4, the first amended information alleged a firearm
enhancement under section 12022.53(b). The prosecutor indicated that the former
counts 4 and 5 were renumbered as counts 5 and 6 in the first amended information,
similar to the complaint. At that time, the court ordered the first amended information
filed.4 Defense counsel on behalf of defendant waived arraignment, the advisement of
rights, and the reading of the first amended information. The court stated for the record
that the parties would proceed to trial based on the first amended information.
Following a jury trial, defendant was found guilty of all counts except count 3.
The jury found true the firearm enhancement allegations attached to counts 1, 2, and 5
4
A Clerk’s Certificate indicates that the clerk was unable to locate the first
amended information. The parties do not dispute that a first amended information was
filed and that it renumbered counts 4 and 5 as counts 5 and 6; charged defendant with a
new count 4, a second degree robbery committed on or about June 18, 2015; and alleged
that defendant personally used a firearm in the commission of that offense within the
meaning of section 12022.53(b).
3
(§ 12022, subd. (a)(1)) and the firearm enhancement allegation attached to count 4
(§ 12022.53(b)). After a court trial, the court found the remaining allegations true.
At the time of sentencing, the trial court considered the many factors in
aggravation, including the facts that defendant was on postrelease community supervision
at the time of the offenses and that he had previously absconded from supervision. The
trial court sentenced defendant to a total term of 36 years.
Specifically, as to count 4, which it selected as the principal term, the court
imposed a 10-year sentence under the Three Strikes law (5-year upper term doubled; see
§ 213, subd. (a)(2)) plus a consecutive 10-year firearm enhancement (§ 12022.53(b)). As
to each of counts 1, 2, and 5, the court imposed a consecutive two-year term plus a
consecutive four-month firearm enhancement. As to count 6, the court imposed a
consecutive two-year term. It imposed a consecutive five-year term for the prior serious
felony conviction enhancement and two one-year prior prison term enhancements.
II. EVIDENCE PRESENTED AT TRIAL
A. Robbery on June 2, 2015 (Count 1)
On June 2, 2015, G.S. was working at his uncle’s laundromat in San Jose. He
opened the laundromat at 5:55 a.m.
The laundromat had three surveillance cameras outside the business and six or
seven surveillance cameras inside the business. Surveillance videos were played at trial
and admitted into evidence.
In the laundromat’s surveillance videos, a gold vehicle could be seen pulling into
and parking in the lot at 6:00 a.m. Two men wearing black clothing could be seen exiting
the vehicle and walking toward and entering the laundromat. One man was wearing a
black hooded sweatshirt with the hood covering his head; he was carrying a red bag. The
other man was wearing a black hooded sweatshirt and a black beanie; he was carrying a
black bag with light-colored, contrasting straps and trim.
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When the two men entered the laundromat, G.S. was in the back, attending to the
machines. The surveillance videos showed the two men walking into the laundromat
through the front door and proceeding through the interior toward G.S. The man with the
red bag, who was in the lead, dropped the bag and jeans fell out of it; he was holding a
handgun. The second man followed close behind. He had glasses and a mustache and
was wearing black gloves.
The armed man pointed his gun at G.S. and said, “Take me to the money and we’ll
leave.” G.S. was afraid and put up his hands. In the surveillance videos, the man with
the black duffle bag could be seen walking toward the laundromat’s office near the front
of the laundromat. G.S was walking behind him with his hands up, followed by the
armed man.
G.S. went into the office with the two men, and G.S. took roughly a thousand
dollars out of a desk drawer and handed over the money. In the surveillance videos, G.S.
could be seen standing with his hands up inside the office while the two men moved
around the office. The man with the dark duffle bag unsuccessfully attempted to open a
safe in the office using a cordless saw, which he had apparently brought with him. The
men asked G.S. for his wallet, which contained credit cards and his ID. The men left the
laundromat through the front door. The red bag and jeans were left behind.
A surveillance video showed the two men running out of the laundromat toward
the gold vehicle. The man without a bag got into the vehicle’s driver’s seat, and the
second man with the black duffle bag got into the front passenger seat. The vehicle
backed up and was driven away.
At trial, G.S. estimated that the older of the two robbers was in his 50’s or 60’s
and the younger robber was in his 20’s or 30’s. G.S. described the older man as Hispanic
and said he wore glasses. G.S. said that the younger man had a tattoo under an eye.
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After the incident, R.C., G.S.’s uncle, received a call from G.S., who said that he
had just been robbed. R.C. drove to the laundromat and found that his nephew was
“pretty well shook up.” R.C. estimated that $600 to $700 was missing.
Officers with the San Jose Police Department responded to the laundromat. They
uploaded surveillance video recordings of the robbery.
B. Robbery on June 5, 2015 (Count 2)
R.C.’s nephew did not want to return to work at R.C.’s laundromat. On
June 5, 2015, R.C. opened the laundromat at approximately 5:45 a.m. On an outside
surveillance camera monitor, R.C. saw a vehicle driving around. On the surveillance
videos admitted into evidence, a dark sedan, which appeared to be missing its front right
hubcap and have paint damage to its roof to the rear of a sunroof, could be seen entering
the laundromat’s back lot and then going in one direction and then the other direction on
the driveway along the side of the laundromat’s building. A young man then walked
down the driveway from the back lot toward the front of the laundromat. He was
wearing a black, zippered, hooded sweatshirt with a light-colored logo. As he moved out
of view of the camera, he was pulling up his hood.
The young man entered the laundromat through the front door and asked R.C. for
change for a $10 bill. The laundry machines operated with coins. The young man then
checked his pockets and indicated that he had left his money in the car. Although the
young man had a hood covering his head, R.C. saw his whole face. His sweatshirt had a
distinctive Nike Air Jordan logo on it. The young man then walked out of the
laundromat’s back door. At trial R.C. described the young man as “Spanish” and said he
had a mustache, a tattoo near an eye, and appeared to be in his 20’s.
On a surveillance video, the young man and a second man, also dressed in black
clothing, could be seen speaking to each other. The young man, now wearing white
gloves, appeared to cover his nose and lower face with something black. The young man
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walked back toward the laundromat’s back lot. The second man, who was carrying a
bag, walked down the driveway toward the front of the laundromat.
On a surveillance camera monitor, R.C. saw the young man with a black bandana
across his face reenter the laundromat through the back door. The young man was
carrying a gun. R.C. figured it was “the same guy that robbed” the laundromat three days
earlier, and R.C. took the money out of the drawer and put it in the back room.
The second man passed by the laundromat’s front doors, and then he walked into
the laundromat and moved in behind the young robber. The second man was wearing
black gloves and carrying a bag and a Taser. The young robber slid back the rack of a
silver pistol, which made a clicking noise, put the gun to R.C.’s face, and asked for “all
the money.” R.C. was standing in the office behind a Dutch door, the lower half of
which was closed. R.C. opened the lower half-door and said to the young man, “[Y]ou
know where it is[;] you can go get it.” The young man walked to the drawer from which
the money had been taken on June 2, 2015, opened the drawer, and took the remaining
money, approximately $40 to $50.
The second man, who appeared to R.C. to be in his 50’s or 60’s, walked into the
office with a Taser and was “Tasering” in R.C.’s direction. The second man was also
concealing his lower face, but his “mask” fell down. He tried to cover his face with his
arm, but his arm dropped once in a while. He had wrinkly skin and a Fu Manchu
mustache with some gray in it, and he was wearing glasses with gold rims. He asked in
English for R.C.’s wallet. R.C. said, “I already gave you enough money . . . .” R.C. was
scared. The second man allowed R.C. to keep his wallet. The young man asked for the
keys to the change machine, and R.C. said that he did not keep the keys at the
laundromat. They took R.C.’s business laptop.
R.C. was told to stay where he was and that he would be shot if he did not comply.
The young man closed both halves of the Dutch door. Both robbers left quickly by the
back door. R.C. watched them leave on a surveillance camera monitor, and he then
7
called the police. On a surveillance video, the sedan seen on the earlier videos could be
seen driving away moments after the two robbers exited from the laundromat.
The San Jose Police Department responded to the robbery. R.C. spoke to San Jose
Police Officer Vargas and gave him a copy of the surveillance videos.
At trial, R.C. identified defendant as one of the men who had robbed him on
June 5, 2015. Defendant was the older man who had been trying to cover his face with
his arm and had asked in English for his wallet.
C. Robbery on June 18, 2015 (Count 4, as amended)
On June 18, 2015, R.A. was working at a store that sold liquor and groceries. The
store generally opened at 6:00 a.m. Approximately 15 to 20 minutes after she had
opened the store, R.A. went to use the restroom. She heard a chime and went out. A man
wearing a mask had entered the store, and he showed “a very big gun” and was moving it
around. R.A. was very scared; she ran into the bathroom and bolted the door from the
inside. When she heard a chime several minutes later, she thought another customer
might have come into the store. She went to the office and looked at the monitor; she
saw that a regular customer had come into the store.
When R.A. sold the customer a newspaper and took his money, she realized that
the drawer that held money was gone. R.A. called the store’s owner, B.S.
The police responded to the store. B.S. arrived after the police. R.A. seemed very
nervous to B.S. The register’s drawer where money was kept had been taken. About
$100 to $150 had been kept in it.
The store had two surveillance cameras outside, and it had cameras inside as well.
Surveillance videos were played for the jury. A man dressed in black with a bag slung
cross-body over a shoulder walked toward the store’s entrance. He pulled a shotgun out
of the bag just before walking into the store. He was wearing a black beanie, black
gloves, glasses, and something black over his nose and lower face. He went to the
counter and pointed the gun at someone, presumably R.A., and moved the gun around.
8
R.A. fled. The armed man went behind the counter, he momentarily moved with the
pointed shotgun in the direction in which R.A. had fled, and he then went to the cash
register. He left the way he had come in, carrying the drawer under his arm.
D. Robbery and Assault on July 7, 2015 (Counts 5 and 6, as renumbered)
On the morning of July 7, 2015, P.K., the owner of another laundromat in San
Jose, received a phone call from a homeless man who had been helping him out in the
laundromat. P.K. had allowed the man to come into the laundromat and take bottles for
recycling. After P.K. had opened the laundromat, P.K. had given a key to the interior
office to the homeless man and left.
Later, the homeless man reported to P.K. that he had been “hit and robbed.” 911
was called. P.K. went to the laundromat, where he found the homeless man bleeding
from the head. Money was kept in a desk drawer in the laundromat’s office. P.K.
indicated that $50 or $60 had been taken.
The laundromat had surveillance cameras inside. Surveillance videos of the
July 7, 2015 robbery were played at trial. At about 5:41 a.m., a man walked into the
laundromat. He was dressed in black and wearing a hooded sweatshirt, a beanie, and
gloves; he was carrying a duffle bag over a shoulder. An armed man then walked into the
laundromat. He was wearing a white, long-sleeved shirt under a shorter-sleeved black
shirt, black pants, a baseball cap, black gloves, and something black over his nose and
lower face. The armed man had a bag slung cross-body over a shoulder and was carrying
a gun with a long barrel. The man pointed it at the homeless man and then repeatedly
struck him with the barrel. The armed man appeared to be pulling something, apparently
a key, away from the homeless man. During the attack, the other man restrained the
homeless man, placed his hands over the homeless man’s mouth and face, and then
shoved him to the floor. The surveillance videos captured this other man’s face and the
shape of his head; he was wearing glasses and had a mustache.
9
A surveillance video taken inside the laundromat’s office showed the armed man
entering, grabbing wads of bills from the top desk drawer, riffling through the other
drawers, and walking out. At 5:43 a.m., both robbers can be seen leaving the laundromat.
E. Police Investigation
Shortly after 6:00 a.m. on June 2, 2015, Matthew Kurrle, a San Jose police officer,
and a police recruit he was supervising were dispatched to a laundromat. Once at the
scene, they were asked to photograph evidence. Photographs were taken of a red bag and
jeans, which were found on the laundromat’s floor and were believed to have been left
behind by the robbery suspects. The red bag contained, among other things, a 49ers shirt,
a receipt from L & D Service Station, and a Home Depot receipt.
During the summer of 2015, Officer Rafael Varela was working in the robbery
unit of the San Jose Police Department. On June 3, 2015, Officer Varela was assigned to
investigate the June 2, 2015 laundromat robbery. He reviewed video recordings of the
incident, which showed a suspect dropping the red bag in the laundromat. The officer
began investigating the bag’s contents, including a service station receipt and a Home
Depot receipt, both dated June 1, 2015.
The department’s video technician was sent to the L & D Service Station to try to
obtain video corresponding to the specific date and time reflected on the service station
receipt collected as evidence. The technician was unable to download any video at that
time, but he brought back some photographic images. Officer Varela also reviewed a
June 1, 2015 surveillance video of a Home Depot store.
On June 4, 2015, Officer Varela watched June 1, 2015 surveillance videos from
the L & D Service Station. The videos and still images taken from the videos were
shown at trial and admitted into evidence. They showed a dark green sedan, which had
faded paint on the top behind a sunroof and a sticker on the lower right of its rear
window. Its front right tire was missing a hubcap. The vehicle pulled up to a pump and a
young man with a mustache entered the station’s store to pay the cashier. He was
10
wearing a black, hooded, zippered sweatshirt with a Jordan logo. In the videos, Officer
Varela saw the man return to his vehicle and take off his sweatshirt; he was wearing a
San Francisco 49ers jersey underneath the sweatshirt. By reviewing the videos and the
images, Officer Varela was able to connect the service station receipt left behind at the
scene of the June 2, 2015 robbery to this young man, make a connection between him and
a Honda sedan, and figure out part of the vehicle’s license plate.
After the June 5, 2015 laundromat robbery, Officer Varela learned that this second
robbery of the same laundromat was perpetrated by two males who appeared to be similar
in ages to the perpetrators of the June 2, 2015 robbery. He reviewed the surveillance
video of the June 5, 2015 robbery and saw the same green Honda with the faded paint
behind the sunroof, the sticker on the rear window, and the missing hubcap. He saw part
of the vehicle’s license plate. The officer saw that one of the perpetrators appeared to be
wearing a sweatshirt like the one that the young man in the service station videos had
been wearing. The perpetrator’s face appeared to be the same as, or similar to, the face of
the young man at the service station as well. In the videos of the June 5, 2015 robbery,
unlike the videos from the service station, Officer Varela could see the left side of the
young man’s face and a tattoo next to an eye.
Officer Varela was able to learn the Honda’s full license plate by running the
partial license plate information through a police database. From that information, the
officer was able to determine the name and address of the Honda’s registered female
owner, M.L. In running the partial plate through police databases, the officer also learned
that the vehicle was associated with a Virginia Place address. A male who had been
arrested at the Virginia Place address had listed M.L. as his emergency contact. At trial,
the officer explained that the license plate information used to associate the vehicle with
the Virginia Place address was captured by a license plate reader on a police vehicle that
drove through the City of San Jose.
11
A June 19, 2015 “CAD event” concerning a dispatch was entered into a police
database. The “Events Details Report” indicated that the reporting party needed to pick
up a vehicle with a specified license plate from a Virginia Place address and get the key
from Jaramillo, who was refusing to return it. Using this and other information, Officer
Varela was able to associate the Honda with Jaramillo. The officer looked at the DMV
(Department of Motor Vehicles) photo database and saw that Jaramillo’s DMV photo
showed the distinctive tattoo on his face and that it listed the Virginia Place address as his
address.
On June 23 and 24, 2015, Officer Joshua Cote conducted surveillance of the
Virginia Place address. He was looking for the two vehicles of interest in the armed
laundromat robberies. One was a gold SUV, and the other was a Honda with a certain
license plate. On June 24, 2015, Officer Cote saw a four-door, gold Oldsmobile SUV
with a certain license plate in the driveway of the residence. The vehicle appeared
similar to the vehicle involved in the June 2, 2015 robbery.
Using the SUV’s license plate number obtained from Officer Cote, Officer Varela
learned the name and Almaden Expressway address of the SUV’s female registered
owner, D.C. Officer Varela ran a records check on the Almaden Expressway address,
which was .7 miles from the laundromat involved in counts one and two. The officer
discovered that the name Jesse Diaz was associated with the Almaden Expressway
address. Officer Varela then ran a records check on Diaz and pulled a criminal mugshot
photo. At that point, he believed that Diaz’s photo and information matched the general
description of the older suspect in the two laundromat robberies (counts 1 & 2). Diaz
was 48 years old during the summer of 2015.
Officer Varela prepared a photographic lineup. Photograph No. 2 was a
photograph of Diaz. A photograph of defendant was not in the lineup; he was not a
suspect at that point. Officer Varela asked Detective Isidro Bagon to present the lineup.
12
Prior to administration of the photographic lineup, Detective Bagon was not
involved in the investigation. He was trained to conduct “double-blind,” photographic
lineups, which meant that he was not involved in the case and did not know which of the
photographs was a suspect’s photograph.
On August 7, 2015, R.C. went to the San Jose Police Department to view a
photographic lineup. Officer Varela was not in the room when R.C. looked through the
photographs. Detective Bagon gave an admonition concerning the process to R.C. and
presented the lineup. R.C. viewed six photographs, one at a time, and went through them
again. When R.C. first saw photograph No. 2, he lingered on it. While looking at
photograph No. 2 a second time, R.C. said, “[L]ooks darn close, the mustache.” R.C.
thought that the person in the photograph looked a little younger but resembled the
perpetrator and that the perpetrator had more wrinkles. On the second go-around, R.C.
indicated that photograph No. 6 also looked like the person. Detective Bagon understood
from R.C.’s comments that R.C. thought that the people in photograph Nos. 2 and 6
looked similar to the perpetrator.
Also on August 7, 2015, P.K. brought a video of the July 7, 2015 robbery of his
laundromat to the San Jose Police Department, and Officer Varela reviewed it.
In August of 2015, Bertrand Milliken, a San Jose police officer, watched a
surveillance video of the elevator located in an apartment building at the Almaden
Expressway address, which the parties stipulated was taken during the first week of July
of 2015 and which was subsequently obtained by the police department’s video
technician. Officer Milliken recognized defendant, with whom he had spoken for an hour
or more on July 16, 2015, in the video and in the courtroom at trial.
At approximately 7:50 a.m. on September 10, 2015, Officer Cote returned to the
Virginia Place address as part of a “covert response unit,” and remained there until
approximately 2:00 p.m. The gold SUV was parked on the driveway during that entire
time. At approximately 2:00 p.m., Jaramillo and a female left the residence and entered
13
the SUV. Jaramillo got into the driver’s seat, and the woman got into the passenger seat.
The officers followed the vehicle.
Jaramillo dropped the female passenger off and then drove to a business, where he
parked, got out of the vehicle, and went inside. When Jaramillo left the business
approximately 30 minutes later, he was arrested. Suspected methamphetamine and
syringes were found on Jaramillo during the search incident to his arrest. At that point,
the officer went into the business, located Diaz, and arrested him as well.
Also on September 10, 2015, Detective Bagon and Officer Cote were involved in
the execution of a search warrant for an apartment at the Almaden Expressway address.
Between a mattress and a box spring in one of the two bedrooms, Detective Bagon
located a duffle bag. It contained a 28-inch-long, 12-gauge shotgun with a 16-inch
barrel, seven live rounds of 12-gauge ammunition, and a pair of black and gray gloves.
A pair of black shoes was found under the bed. Letters and bills found in the bedroom
had the name “Jesse Diaz” on them. In a robbery surveillance video, a person wearing
black gloves was holding a shotgun that was very similar to the one found in the bag.
On September 10, 2015, Diaz was interviewed by Detective Zanoto and Officer
Varela. They eventually confronted Diaz with photographs that were still images taken
from the video of the July 7, 2015 robbery at a laundromat. They accused Diaz of being
in the photographs. Officers used the ruse of telling Diaz that his DNA had been found at
the laundromat involved in counts 1 and 2. At some point, Diaz remarked that defendant
and he looked alike. At the conclusion of the interview, Officer Varela collected Diaz’s
glasses because Diaz had indicated that defendant had worn the glasses. Clips from the
recorded interview were played for the jury at trial.
During the investigation, Officer Varela submitted some items of evidence to the
Santa Clara County Crime Lab for DNA testing. Those items included the 49ers shirt
that had been left behind at the laundromat during the June 2, 2015 robbery; the duffle
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bag that had been seized at the Almaden Expressway address; the shotgun that was found
inside that bag; and the glasses collected from Diaz at the end of the police interview.
A criminalist with the Santa Clara County Crime Laboratory testified as an expert
in “PCR DNA testing.” She compared the DNA profile generated from the glasses to
reference DNA samples from Diaz, defendant, and Jaramillo. Both defendant and
Jaramillo were eliminated as DNA contributors, while Diaz and an unknown individual
were possible contributors to the DNA mixture. The parties stipulated that she found that
it was “10 million times more likely to obtain the DNA mixture taken from the glasses if
Jesse Diaz, and an unknown individual, [were] contributors than if two unknown
individuals [were] contributors.”
The criminalist compared the DNA profile generated from the 49ers T-shirt to
reference DNA samples from Diaz, defendant, and Jaramillo. She found that both
defendant and Diaz were eliminated as DNA contributors, while Jaramillo and an
unknown individual were possible contributors to the major DNA mixture. She found
that it was “96 million times more likely to see this DNA mixture” if Jaramillo and an
unknown individual were contributors than if “two random people” were contributors.
The swabs of the firearm’s trigger area and textured areas did not provide enough DNA
information to allow the criminalist to make comparisons and draw conclusions.
F. Diaz’s Testimony
Diaz, who was called to testify by the People, met Jaramillo in approximately
March of 2015. Diaz had known defendant for about three years and described him as a
friend.
At the end of May of 2015, Diaz was living in the two-bedroom apartment at the
Almaden Expressway address. This was where Diaz’s mother and his sister lived. In
May of 2015, Diaz’s girlfriend, Diaz’s nephew and niece, and defendant were also living
there.
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Diaz testified that on approximately May 25, 2015, a family Memorial Day
barbeque was held at the apartment. Diaz said that Jaramillo and defendant were also
there and that they approached him about robbing laundromats with them. Diaz admitted
that he initially agreed to join them, but testified that he later decided not to participate.
Diaz testified that shortly after Memorial Day, he fought with his mother and
decided to move out of the Almaden Expressway apartment. According to Diaz,
defendant continued to live there. Even after he moved out, Diaz still frequented the
apartment.
Approximately a week after the barbeque, Diaz began working as an assembler for
an HVAC manufacturing company. He was hired to work the swing shift, which was
3:30 p.m. to midnight, but he initially trained on the day shift. He was required to punch
in and out of work with a timecard. Diaz was working for the company between
June 1, 2015 and September 10, 2015.
According to Diaz, defendant told Diaz that Jaramillo and he had robbed a
laundromat on June 2, 2015 and that they had been “masked-up.” Diaz’s timecard report
showed that he clocked into work at 6:52 a.m. on June 2, 2015.
Diaz testified that a few days later, on June 5, 2015, defendant told Diaz that he
had robbed the same laundromat again. Diaz’s timecard report showed that he clocked
into work at 6:53 a.m. on June 5, 2015. Diaz admitted at trial that he accepted stolen
money from Jaramillo so that he could pay his rent.
On June 9, 2015, Diaz went home after working the swing shift and met up with
defendant there at 1:00 or 2:00 a.m. Diaz testified that defendant told him that Jaramillo
and he had just committed a robbery involving a woman. Evidence at trial showed that
just after a female laundromat employee had locked up for the night, she was forced to
reopen the laundromat by a masked man with a gun, which was “like a rifle,” and she let
the man into the laundromat’s office. The employee thought that he had taken $600 to
16
$700 in cash; the laundromat’s owner estimated that a little over $500 was taken. The
robbery, of which defendant was found not guilty, occurred at approximately 10:45 p.m.
The evidence did not show that Diaz was at work during the robbery on the
morning of June 18, 2015. An employee timecard report showed that on June 18, 2015,
Diaz punched into work at 3:25 p.m. and punched out of work at approximately
midnight.
At trial, Diaz stated that during the summer of 2015, he kept some of his clothes
and belongings at his mother’s Almaden Expressway apartment. According to Diaz, he
had moved back into the apartment a few months before his trial testimony on
September 8, 2016. That address was on his driver’s license.
Diaz acknowledged that in August of 2015 he asked Jaramillo to get him a gun
and explained that the reason for his request was that he was having “some problems”
and “some guys were going to get [him] with a bat.” According to Diaz, Jaramillo
brought him a duffle bag and told him that a gun was in there, but Diaz claimed to have
never opened the bag or touched the gun. He admitted that he knew there was a gun
inside the bag because he had felt it through the bag.
On September 10, 2015, Diaz was at work when the police arrived. He had some
methamphetamine on him when he was arrested. Diaz had used methamphetamine for a
long time.
During the interview after his arrest, the officers confronted Diaz with
photographs, which were “still frames” taken from the surveillance video of the
July 7, 2015 laundromat robbery, and the officers said that he was in the photographs.
Diaz told them that the person was not him and that the person was defendant. Diaz
signed the photographs and wrote defendant’s name next to the person who he said was
defendant. At trial, Diaz testified that defendant was the man in the photographs.
Diaz was charged with the two robberies that were committed on June 2, 2015 and
June 5, 2015 at the laundromat. In May of 2016, Diaz pleaded guilty or no contest to
17
being an accessory after the fact to those robberies based on his taking of stolen money
from Jaramillo. Diaz was subpoenaed to testify as a witness in this case, and the District
Attorney’s Office offered him immunity for that testimony.
At trial, after viewing surveillance videos of the June 2, 2015 laundromat robbery,
Diaz testified that he recognized both men in the videos and identified them as defendant
and Jaramillo. In a surveillance video of the June 5, 2015 robbery, Diaz identified
Jaramillo as the person in the black hooded sweatshirt with a logo. In yet another video
of that robbery, Diaz identified defendant as the man who was wearing a beanie. But
when asked what made him think it was defendant, Diaz could not say. After viewing
surveillance videos of the June 9, 2015 robbery, Diaz conceded that he could not
recognize the masked man.
At trial, after watching a surveillance video of the June 18, 2015 robbery, Diaz
testified that he recognized defendant as the man in the video. After watching a
surveillance video of the July 7, 2015 robbery, Diaz testified that he recognized
defendant in the video. He confirmed that defendant was the man who held the victim
while the other man was hitting the victim with the gun.
At trial, Diaz confirmed that under the immunity agreement with the District
Attorney’s Office, his testimony in this case could not be used to prosecute him for the
robberies but that he could be charged with perjury if he lied under oath or committed
perjury. Diaz affirmed that that he had told the truth when he testified.
On cross-examination, Diaz acknowledged that he was convicted of felony
possession of stolen property in 2008, that he concealed evidence in 2013 by swallowing
“dope” and “methamphetamine” when he was pulled over, that he lied when he denied
having anything in his pocket when he was detained by police at a Motel 6 on
September 6, 2013, and that he lied in response to a question when he was detained by
police on January 1, 2014. Diaz admitted that he did not tell police the truth when he was
accused of committing crimes in 2013 and in 2014.
18
Diaz testified that he spent a lot of time with defendant in June of 2015. He
denied telling the police during the interview on September 10, 2015 that he never “hung
out” with defendant. After watching a video clip of that interview at trial, Diaz
acknowledged that he had told police that Jaramillo and defendant did not “hang out.”
Diaz admitted that he might have said to police that he did not hang out with Jaramillo.
Diaz acknowledged that Jaramillo and defendant committed some crimes together and
that they were with him at the barbeque, which he conceded qualified as “hanging out.”
Diaz agreed that he saw Jaramillo all the time because they had worked together.
Diaz admitted that he had testified at a hearing the week before trial that defendant
had hung out during the day at the Almaden Expressway address and had spent a few
nights there. Diaz conceded that he had testified at trial earlier that day that defendant
had lived there.
At trial, Diaz explained that his girlfriend was Denise and that Jaramillo had dated
his girlfriend’s daughter, D.C. On cross-examination, Diaz denied that D.C. had lived at
the Almaden Expressway address or had been his girlfriend. He said that his girlfriend
Denise lived with him and that it was D.C., not Denise, who drove the gold Oldsmobile
SUV. He testified that he had let D.C. use the address to register her SUV even though
she did not live there. Diaz admitted that he had driven the SUV a couple of times. Diaz
testified that Jaramillo’s grandmother lived at the Virginia Place address and that
Jaramillo had lived there. Diaz had driven in the gold SUV with Jaramillo to that
address.
At trial, Diaz acknowledged that when the police had asked him if he owned a
gold SUV, he had said no. Diaz admitted that he might have initially told police that he
did not know defendant and did not hang out with him. Diaz could not remember telling
the police that his first conversation with Jaramillo and defendant about the robberies
occurred at work in the middle of June. But Diaz then agreed that he had told police that
they had “hook[ed] up” in the beginning or middle of June.
19
On cross-examination, Diaz acknowledged that he had lied during the previous
week’s testimony when he indicated that defendant had not told him about a robbery of a
woman during the summer of 2015. Diaz maintained that he had talked to both Jaramillo
and defendant about that particular robbery.
Diaz acknowledged that he wore glasses, which he claimed were just for reading.
At the time of his arrest, Diaz was wearing glasses. During the police interview that
followed, the officers indicated that the glasses worn by a person in a surveillance
photograph appeared to be the same glasses that Diaz was wearing. Diaz told police that
the glasses that he was wearing belonged to defendant. When police told Diaz that his
DNA had been found at the scene of a laundromat robbery, Diaz first said that he went to
that laundromat to wash his clothes. Diaz also told police that defendant and he shared
clothing and that he had lent defendant the sweatshirt that defendant was wearing in the
photograph.
By the time of trial, however, Diaz knew that in fact his DNA had not been found
at the scene and the police had been using a ruse. He did not actually know whether the
glasses in the surveillance photograph were actually the same glasses that he had been
wearing during the police interview. He testified that defendant wore glasses all the time.
At trial, Diaz confirmed that he had a sleeve of tattoos covering his neck, and he
was asked to stand up and tilt his head so the jury could see them.
G. Defense Case
Raul Flores, an investigator with the Santa Clara County Public Defender’s Office,
took photographs of defendant and Jaramillo in August of 2015, which were admitted
into evidence. Investigator Flores also obtained Jaramillo’s license photograph from the
DMV, which was admitted into evidence. The same neck tattoos were visible in both
photographs of Jaramillo. The parties stipulated that defendant had the tattoo depicted in
defense exhibit G prior to June 2, 2015.
20
Using Google maps, investigator Flores determined that the distance between the
laundromat involved in the robberies on June 2, 2015 and June 5, 2015 and the HVAC
manufacturing facility was approximately 1.2 or 1.3 miles, or approximately a
five-minute drive.
Upon investigator Flores’s request to the DMV for the names of all persons having
California driver’s licenses or IDs associated with the Almaden Expressway or Road
apartment, he obtained a certified list of eight people, which included Diaz but not
defendant. Upon his requests to the DMV, he received two certified documents, one
showing that a 1999 Oldsmobile with a certain license plate was registered to that
Almaden Expressway apartment and another showing the address on Diaz’s driver’s
license issued on January 14, 2016. But the investigator had not found any DMV records
showing that Diaz had, through applying for a driver’s license, associated himself with
the Almaden Expressway address during the summer of 2015. Neither had the
investigator found that Diaz was associated with the Oldsmobile in the DMV’s records.
Diaz’s driver records reflected that Diaz was required to wear corrective lenses when
driving.
A case manager and forensic assistant for the National Center for Audio and
Video Forensics testified as an expert in the area of visual video forensics. He viewed
the surveillance video from the July 7, 2015 robbery. In the video, the expert saw many
examples of digital artifacts, which are visual alterations resulting from software that
does not accurately reflect what was recorded. He stated that a digital artifact on a
person’s skin might be mistaken for a tattoo.
The expert also looked at photographs of defendant and Jaramillo that showed
their neck tattoos. The surveillance video files from the July 7, 2015 robbery were
enhanced to focus on the neck areas of the individuals in the video. The enhanced videos
were played for the jury. The expert pointed out black spots, marks, or dots in the videos
that were digital artifacts.
21
Dr. Kathy Pezdek, a psychology professor and cognitive scientist, testified as an
expert in the area of eyewitness identification and memory. She testified at length
regarding the three-stage process of memory, which included (1) perception or encoding,
(2) storage, and (3) identification. She explained the factors that affected the accuracy of
a person’s perception or encoding of a memory: (1) the exposure time; (2) the presence
of distractions; (3) the presence of a weapon; (4) the eyewitness’s stress; (5) the
perpetrator’s use of disguise; and (6) the cross-race effect. The passage of time was the
main factor affecting the second stage. The factor affecting the third stage was whether
the identification procedure was “fair and unbiased.” In her opinion, the factors she had
discussed cast doubt on R.C.’s in-court identification of defendant. She explained in
detail all the factors affecting that identification, including R.C.’s very short exposure
time to the perpetrator (approximately a minute and a half).
III. DISCUSSION
A. Alleged Prosecutorial Misconduct
Defendant now claims that the prosecutor engaged in prejudicial misconduct when
he suggested in closing argument that a robber would go celebrate after “a successful
heist” and that he would not go to work. The prosecutor asserted that Diaz had an alibi
for the June 2, 2015 and June 5, 2015 robberies because he clocked into work a short
time after those crimes were committed. The prosecutor remarked in part, “Who goes to
work after robbing laundromats? Who goes to work after robbing anything? What are
you going to do after you rob some place, you are going to party. You are going to take
the money and you’re going to do something with it. You’re certainly not about to go to
work.”
Defendant asserts that the prosecutor’s remarks were “not proper argument based
upon legitimate inferences that could be made from the evidence” and that the remarks
were an improper reference to facts not in evidence and in effect prosecutorial testimony
based upon personal knowledge. Defendant argues that the prosecutor’s misconduct
22
violated federal due process because it undercut his defense that Diaz, rather than he, was
the older perpetrator of the robberies committed on June 2, 2015 and June 5, 2015. He
also contends that even if the misconduct did not constitute a due process violation, it
resulted in a miscarriage of justice under state law.
“[I]t is misconduct for the prosecutor to state facts not in evidence or to imply the
existence of evidence known to the prosecutor but not to the jury. [Citation.]” (People v.
Smith (2003) 30 Cal.4th 581, 617.) However, “[c]ounsel may argue facts not in evidence
that are common knowledge or drawn from common experiences. [Citation.]” (People v.
Young (2005) 34 Cal.4th 1149, 1197.) “ ‘ “It is settled that a prosecutor is given wide
latitude during argument. The argument may be vigorous as long as it amounts to fair
comment on the evidence, which can include reasonable inferences, or deductions to be
drawn therefrom. [Citations.]” ’ [Citation.]” (People v. Sandoval (2015) 62 Cal.4th 394,
439 (Sandoval).)
Defendant forfeited his claim of prosecutorial misconduct. “ ‘To preserve a claim
of prosecutorial misconduct for appeal, a defendant must object and seek an admonition
if an objection and admonition would have cured the harm.’ [Citation.] The objection
must be made on the same ground upon which the defendant now assigns error.
[Citation.]” (People v. Redd (2010) 48 Cal.4th 691, 734.) “The lack of a timely
objection and request for admonition will be excused only if either would have been
futile or if an admonition would not have cured the harm. [Citations.]” (People v. Powell
(2018) 6 Cal.5th 136, 171.) “ ‘ “[T]he absence of a request for a curative admonition” ’
may likewise be excused if ‘ “ ‘the court immediately overrules an objection to alleged
prosecutorial misconduct [and as a consequence] the defendant has no opportunity to
make such a request.’ ” ’ [Citation.] ‘A defendant claiming that one of these exceptions
applies must find support for his or her claim in the record. [Citation.] The ritual
incantation that an exception applies is not enough.’ [Citation.]” (People v. Daveggio
23
and Michaud (2018) 4 Cal.5th 790, 853.) Defendant does not argue that a timely and
specific objection was excused.
B. Alleged Ineffective Assistance of Counsel
Defendant claims that defense counsel rendered ineffective assistance of counsel
by failing to object to the prosecutor’s remarks now challenged.
1. Governing Law
The standard for evaluating a claim of ineffective assistance of counsel is well
established. It requires a two-prong showing of deficient performance and resulting
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “Failure to
make the required showing of either deficient performance or sufficient prejudice defeats
the ineffectiveness claim.” (Id. at p. 700.)
As to deficient performance, a defendant “must show that counsel’s representation
fell below an objective standard of reasonableness” measured against “prevailing
professional norms.” (Strickland, supra, 466 U.S. at p. 688.) “Judicial scrutiny of
counsel’s performance must be highly deferential.” (Id. at p. 689.) “[E]very effort” must
“be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective
at the time.” (Ibid.) “[A] court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” (Ibid.)
The prejudice prong requires a defendant to show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)
2. Analysis
“On direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
24
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]”
(People v. Mai (2013) 57 Cal.4th 986, 1009.) “ ‘[T]he decision facing counsel in the
midst of trial over whether to object to comments made by the prosecutor in closing
argument is a highly tactical one’ . . . [citation], and ‘a mere failure to object to . . .
argument seldom establishes counsel’s incompetence’ [citation].” (People v. Centeno
(2014) 60 Cal.4th 659, 675.)
Here, defense counsel could have reasonably concluded that the challenged
remarks, considered in context, were essentially an appeal to the jurors’ common sense
and a fair comment on the evidence of the relatively short interval between when the
robberies charged in counts 1 and 2 took place and the time that Diaz clocked in at work
on each of those dates. (See People v. Mendoza (2016) 62 Cal.4th 856, 908.) The facts
of that timing were in evidence, and such evidence related to the identity of a perpetrator.
(See Sandoval, supra, 62 Cal.4th at p. 439 [prosecutor did not commit misconduct by
arguing that the defendant had grown out his hair to deceive the jury].) Furthermore, in
light of the instructions the trial court had just given them, there was no reasonable
likelihood the jurors construed the prosecutor’s remarks as asking them to rely on his
personal knowledge outside of the evidence. “Counsel may not be deemed incompetent
for failure to make meritless objections.” (People v. Coddington (2000) 23 Cal.4th 529,
625, overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046,
1069, fn. 13.) In addition, defense counsel could have made the reasonable tactical
decision that it would be more effective to attack Diaz’s credibility in his closing
argument, which he vigorously did, and not to draw the jury’s attention to the limited
time between the burglaries and Diaz’s arrival at work by objecting to the prosecutor’s
remarks. (See People v. Huggins (2006) 38 Cal.4th 175, 206.)
In any case, defendant has not established the prejudice prong of an ineffective-
assistance-of-counsel claim. Just before the closing arguments, the trial court instructed
25
the jury: “Nothing that the attorneys say is evidence. In their opening statements and
closing arguments, the attorneys discuss the case, but their remarks are not evidence.”
The court told the jury that “[e]vidence is the sworn testimony of witnesses, the exhibits
admitted into evidence, and anything else I told you to consider as evidence.” The trial
court also instructed: “You must decide what the facts are. It is up to all of you and you
alone to decide what happened based only on the evidence that has been presented to you
in this trial.”
Moreover, the jury saw both defendant and Diaz, who testified as a witness, in the
courtroom and could compare their appearances to the robbers in the surveillance videos
and still images taken from those videos. They were able to assess Diaz’s credibility
based upon his extensive testimony, the evidence that he had lied at times, and his own
criminal history.
“In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel’s performance had no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel [had] acted differently.
[Citations.] Instead, Strickland asks whether it is ‘reasonably likely’ the result would
have been different. [Citation.] This does not require a showing that counsel’s actions
‘more likely than not altered the outcome,’ but the difference between Strickland’s
prejudice standard and a more-probable-than-not standard is slight and matters ‘only in
the rarest case.’ [Citation.] The likelihood of a different result must be substantial, not
just conceivable. [Citation.]” (Harrington v. Richter (2011) 562 U.S. 86, 111-112.)
Defendant has failed to establish his claim of ineffective assistance of counsel.
C. CALCRIM No. 315
Defendant contends that the trial court violated his due process rights by
instructing the jury that it should consider an eyewitness’s “certainty” in evaluating the
witness’s identification testimony.
26
The trial court instructed the jury pursuant to CALCRIM No. 315 on eyewitness
identification testimony. This instruction told the jury: “In evaluating identification
testimony, consider the following questions: . . . How certain was the witness when he
made an identification.”
Defendant asserts that this portion of the instruction violated his due process rights
because “it ratified the common misperception that a witness’s certainty correlates with
his or her accuracy” (italics omitted) and “abundant scientific research . . . has
documented the unreliability of eyewitness identification . . . .” He contends that this
alleged error requires reversal because it was not harmless beyond a reasonable doubt.
1. Background
At the “blackboard” preliminary examination, R.C. testified that he recognized
defendant as the older man who had robbed him.5
Defendant made an in limine motion asking the court to exclude “any testimony
by any eyewitness as to level of certainty of an identification,” and he asked the court to
modify CALCRIM No. 315 to remove the reference to witness certainty. The prosecutor
opposed the defense request and argued that R.C.’s lack of certainty regarding a prior
photo lineup (which did not include defendant’s photo) was important for the jury to
consider. The defense responded that the target of its request was “questioning by the
People as to how certain are you about your in-court identification . . . .” The defense
noted that it would be calling an expert on eyewitness identification. Defendant’s trial
counsel argued that “it really undercuts that witness’ credibility when the Court then
gives an instruction that tells the jury [that] they should consider something, which an
expert witness has just told them is meaningless.” The trial court declined to modify the
5
A “blackboard prelim” was described at the preliminary examination as a
procedure employed where a witness has not previously identified the defendants. The
defendants are seated behind “blackboards” until the witness has testified and then
“unveil[ed]” individually to the witness so that the witness can testify as to whether he or
she recognizes any of the defendants.
27
instruction. It concluded that an eyewitness’s “statement of confidence” in his or her
identification “goes to the weight of the testimony.” “[T]he jury can give whatever
weight they believe the testimony deserves.”
R.C. made a courtroom identification of defendant at trial. He did not express any
particular level of certainty when he did so. The prosecutor asked him: “[D]o you see
either of the people who robbed you on June 5th?” R.C. responded: “Yes, he’s sitting
over there,” and he specified that “He’s wearing a green shirt.” R.C. also answered
“Yes” when the prosecutor asked if “Mr. Yanez, the defendant, is the person who robbed
you on June 5th.” R.C. testified at trial that he had described the older robber to the
police as a Spanish man in his 50s, about 5 foot 7 inches tall, with “wrinkly” skin and a
Fu Manchu mustache, who was wearing glasses with gold rims.
R.C. also testified that he had viewed a photo lineup (which did not contain any
photos of defendant) and had told the police that two of the photos, one of which was of
Diaz and the other of which was a “filler” photo, “looked like” the older robber. R.C.
told the officer administering the lineup that those two photos “look close,” but he
“couldn’t be positive . . . .” The officer who showed R.C. the photo lineup testified that
he does not ask witnesses “how certain they are” when he shows them a lineup.
R.C. testified that the older robber was wearing a mask, but the mask slipped
down at one point. On cross-examination, R.C. testified that he had told the police
shortly after the robbery that he could identify the younger robber but was less sure that
he could identify the older robber. Surveillance video of the robbery was played for the
jury.
The defense presented an expert witness on “eyewitness identification and
memory.” She did not directly address eyewitness certainty, but she did testify that,
“[u]nder certain circumstances people are overconfident about their ability to remember
someone even when they’re wrong . . . .” The defense expert testified that in-court
identifications are unreliable in general and that R.C.’s in-court identification was
28
unreliable for a host of reasons, including his prior lack of certainty that he could identify
the older robber, his responses to the photo lineup, the year-long time lapse between the
robbery and his identification of defendant, and the cross-racial nature of the
identification. The trial court instructed the jury that it “must consider” opinions given
by expert witnesses.
2. Analysis
Defendant’s claim that the witness certainty reference in CALCRIM No. 315
violated his due process rights was recently addressed by the California Supreme Court in
People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke). The California Supreme Court held
that the witness certainty reference in the instruction, “in the context of the trial record as
a whole, . . . did not render [the defendant’s] trial fundamentally unfair.” (Id. at p. 646.)
It noted that the instruction did not tell the jury that “ ‘certainty equals accuracy,’ ” the
defendant had been permitted to call an eyewitness identification expert, and the trial
court had instructed the jury that it was required to consider that expert’s testimony.
(Id. at p. 647.)
In Lemcke, the victim had identified the defendant in a photo lineup shortly after
the crime, but she was “ ‘under anesthesia’ ” at the time of the identification. (Lemcke,
supra, 11 Cal.5th at p. 648.) During subsequent identification procedures, the victim told
the police “ ‘for sure it was [the defendant].’ ” (Id. at p. 649.) The victim also made an
in-court identification of the defendant at trial. (Id. at pp. 649-650.) She testified that “it
was ‘impossible for [her] not to recognize his face.’ ” (Id. at p. 650.) The defense expert
testified that witness certainty was relevant only when the identification occurred shortly
after the event. (Id. at p. 651.)
On appeal, the defendant argued that the trial court’s witness certainty instruction
violated his state and federal due process rights. (Lemcke, supra, 11 Cal.5th at p. 653.)
The court rejected his claim. It held that, when viewed in context with the other standard
jury instructions, the witness certainty instruction did not “ ‘lower the prosecution’s
29
burden of proof’ ” or interfere with the jury’s evaluation of the credibility and reliability
of the eyewitness’s identification testimony. (Id. at pp. 657-659.) Nor did the instruction
obstruct the defendant’s right to present a defense, as he did by cross-examining the
victim and presenting his eyewitness identification expert. (Id. at p. 660.)
Although defendant was given the opportunity to submit supplemental briefing
after the California Supreme Court’s decision in Lemcke, he did not do so, so he does not
argue that this case is distinguishable from Lemcke. Nor could he. Indeed, in this case
the witness certainty instruction could not have had any significance at trial as R.C. never
expressed any certainty about his identification of defendant. He told the police shortly
after the event that he was “not sure” he could identify the older robber. R.C. pointed to
two photos of other men in the photo lineup as “close” to the older robber. He identified
defendant only during in-court identification procedures, and defendant was permitted to
present expert testimony that such procedures are unreliable. The same standard
instructions that were given in Lemcke were given here, and defendant had a full
opportunity to challenge R.C.’s identification of him.
Defendant points out that R.C. was the only “percipient witness” who identified
defendant as the older robber, though he acknowledges that Diaz also incriminated
defendant in this robbery. He discounts Diaz’s testimony due to Diaz’s motivation to
persuade the jury that Diaz was not the older robber. But these circumstances do not
have anything to do with the witness certainty instruction. We find no due process
violation and reject defendant’s contention.
D. Multiple Punishment in Violation of Section 654
Section 654, subdivision (a), provides in pertinent part: “An act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” (Italics added.)
30
“Whether a defendant may be subjected to multiple punishment under section 654
requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may
include not only a discrete physical act but also a course of conduct encompassing several
acts pursued with a single objective. [Citations.] We first consider [whether] the
different crimes were completed by a ‘single physical act.’ ([People v.] Jones [(2012)]
54 Cal.4th [350,] 358.) If so, the defendant may not be punished more than once for that
act.” (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening); see id. at p. 312.)
“Only if we conclude that the case involves more than a single act—i.e., a course
of conduct—do we then consider whether that course of conduct reflects a single ‘intent
and objective’ or multiple intents and objectives. [Citations.]” (Corpening, supra, 2
Cal.5th at pp. 311-312.) “A trial court’s express or implied determination that two crimes
were separate, involving separate objectives, must be upheld on appeal if supported by
substantial evidence. [Citation.]” (People v. Brents (2012) 53 Cal.4th 599, 618.)
But as the People concede, substantial evidence does not support the court’s
determination that there was a separate objective for the assault with a firearm (count 6)
that took place during the robbery in count 5. The evidence in the record before us shows
only that the robbery and the assault were committed pursuant to a single intent and
objective, i.e., to rob the victim. Therefore, the punishment for either count 5 or count 6
must be stayed. (§ 654, subd. (a).)
E. New Discretion to Strike Firearm Enhancement
As indicated, the jury found true the enhancement allegation for personal use of a
firearm, which was attached to count 4, and the trial court accordingly imposed a 10-year
enhancement pursuant to section 12022.53(b). Relying on the retroactivity principles of
In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant argues that this court must
remand the case to allow the trial court to determine whether to exercise its new
discretion to strike the firearm enhancement imposed under section 12022.53(b), as now
permitted under section 12022.53, subdivision (h) (12022.53(h)), which was amended by
31
the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.). The People concede that
defendant is entitled to a remand for that purpose.
Effective January 1, 2018, section 12022.53(h), was amended to provide, and still
does provide: “The court may, in the interest of justice pursuant to [s]ection 1385 and at
the time of sentencing, strike or dismiss an enhancement otherwise required to be
imposed by this section. The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, § 2;
Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) At time of the robbery
to which the 10-year firearm enhancement attached, and at the time of sentencing, the
subsection read: “Notwithstanding [s]ection 1385 or any other provision of law, the court
shall not strike an allegation under this section or a finding bringing a person within the
provisions of this section.” (Stats. 2010, ch. 711, § 5.)
Under the Estrada rule, “we presume that newly enacted legislation mitigating
criminal punishment reflects a determination that the ‘former penalty was too severe’ and
that the ameliorative changes are intended to ‘apply to every case to which it
constitutionally could apply,’ which would include those ‘acts committed before its
passage[,] provided the judgment convicting the defendant of the act is not final.’
(Estrada, supra, 63 Cal.2d at p. 745.) The Estrada rule rests on the presumption that, in
the absence of a savings clause providing only prospective relief or other clear intention
concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible, distinguishing only as
necessary between sentences that are final and sentences that are not.’ [Citation.] ‘The
rule in Estrada has been applied to statutes governing penalty enhancements, as well as
to statutes governing substantive offenses.’ [Citations.]” (People v. Buycks (2018) 5
Cal.5th 857, 881-882.)
Nothing in the appellate record clearly indicates that the trial court would have
necessarily declined to strike or dismiss the 10-year firearm enhancement imposed under
32
section 12022.53 if it had had the discretion to do so. Consequently, we will remand to
allow the trial court to consider whether to exercise its discretion to strike or dismiss the
enhancement.
F. New Discretion to Strike Prior Serious Felony Conviction Enhancement
As indicated, the trial court found true the enhancement allegation for a prior
serious felony conviction and accordingly imposed a five-year enhancement pursuant to
section 667(a). Defendant argues that under the retroactivity principles of Estrada, this
court must remand this case to allow the trial court to consider exercising its new
discretion to dismiss or strike the prior serious felony enhancement, as now permitted
under sections 667(a) and 1385, as amended by the passage of Senate Bill No. 1393
(2017-2018 Reg. Sess.). Defendant raised this argument in a brief filed shortly before the
amendments went into effect, and the People conceded in their brief that if the
amendments took effect before his judgment is final, the law applies retroactively.
Effective January 1, 2019 (see Stats. 2018, ch. 1013, § 2; Cal. Const., art. IV, § 8,
subd. (c); Gov. Code, § 9600, subd. (a)), section 1385 was amended to delete the
provision prohibiting a judge from striking a prior serious felony conviction
enhancement. Also, section 667(a) was amended to omit its reference to section 1385,
subdivision (b). (See Stats. 2018, ch. 1013, § 1.) Section 1385 now permits a court “in
furtherance of justice” to exercise its discretion to strike or dismiss a five-year
enhancement for a prior serious felony conviction.
We agree that the trial court must be afforded an opportunity to exercise its
discretion under current section 1385 to strike the five-year enhancement imposed under
section 667(a). (See e.g. People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v.
Dearborne (2019) 34 Cal.App.5th 250, 268; People v. Jimenez (2019) 32 Cal.App.5th
409, 426.)
33
G. Request for a Remand for an Ability-to-Pay Hearing in Light of Dueñas
Citing Dueñas, defendant argues that the trial court violated his federal due
process, equal protection, and Eighth Amendment rights by imposing the minimum
restitution fine (§ 1202.4. subds. (b), (c)), the court facilities assessment (Gov. Code,
§ 70373), and the court operations assessment (§ 1465.8) without first holding a hearing
and finding that he had the ability to pay.
1. Probation Report
The probation report filed on March 6, 2017 indicated that defendant was not
interviewed at the request of defense counsel and that he provided no statement to the
probation officer who prepared the report for sentencing. The report disclosed very
limited information concerning defendant.
The report indicated that defendant was 46 years old when he committed the
current crimes and that he was 47 years old at the time the probation report was prepared.
According to the report, defendant had a lengthy history of criminal conduct, including
five prior felony convictions, one of which was for armed robbery. The report stated that
defendant was on PRCS (postrelease community supervision) when he committed the
current offenses.
According to the report, defendant’s probation officer while he was on PRCS had
said that defendant was released on PRCS on November 17, 2014 and reported to
probation on January 6, 2015. After defendant tested positive for methamphetamine, he
was referred to cognitive-based therapy and an outpatient substance abuse program.
Defendant stopped reporting to probation in March of 2015 and absconded from
supervision.
2. The Dueñas Decision
In Dueñas, an appellate court agreed that imposition of a restitution fine and court
facilities and court operations assessments without considering defendant Dueñas’s
ability to pay violated state and federal constitutional guarantees because their imposition
34
“punishe[d] her for being poor.” (Dueñas, supra, 30 Cal.App.5th at p. 1160.) The
defendant had “cerebral palsy, and because of her illness she [had] dropped out of high
school and [did] not have a job.” (Ibid.) She was “an indigent and homeless mother of
young children.” (Ibid.)
The trial court had placed defendant Dueñas on probation for a misdemeanor
violation and “imposed a $30 court facilities assessment under Government Code
section 70373, a $40 court operations assessment under . . . section 1465.8, and a $150
restitution fine under . . . section 1202.4.” (Dueñas, supra, 30 Cal.App.5th at 1162.) The
defendant asked for a hearing to determine her ability to pay her appointed counsel fees
and court fees, and the court later held an ability-to-pay hearing. (Id. at pp. 1162-1163)
“The [trial] court concluded that the $30 court facilities assessment under Government
Code section 70373 and $40 court operations assessment under . . . section 1465.8 were
both mandatory regardless of Dueñas’s inability to pay them. With respect to the $150
restitution fine, the court found that Dueñas had not shown the ‘compelling and
extraordinary reasons’ required by statute ([§] 1202.4, subd. (c)) to justify waiving this
fine.” (Id. at p. 1163.) “The court rejected Dueñas’s constitutional arguments that due
process and equal protection required the court to consider her ability to pay” those
assessments and restitution fine. (Ibid.)
On appeal, Dueñas argued that “imposing fines and fees on people too poor to pay
punish[es] the poor for their poverty.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) As to
the court facilities and court operations assessments, the appellate court believed that
their “potentially devastating consequences [for] indigent persons in effect transform a
funding mechanism for the courts into additional punishment for a criminal conviction
for those unable to pay.” (Dueñas, supra, at p. 1168.) The court identified some of the
potential consequences: damage to a defendant’s credit; interference with a defendant’s
other financial commitments, such as child support obligations; disruption of a
35
defendant’s employment; and restriction of defendant’s employment opportunities.
(Ibid.)
As to the restitution fine, the appellate court in Dueñas stated: “Unlike the
assessments discussed above, the restitution fine is intended to be, and is recognized as,
additional punishment for a crime. (People v. Hanson (2000) 23 Cal.4th 355, 363.)”
(Dueñas, supra, 30 Cal.App.5th at p. 1169.) It observed: “As a result of . . .
section 1202.4, subdivision (c)’s prohibition on considering the defendant’s ability to pay
the minimum fine, the criminal justice system punishes indigent defendants in a way that
it does not punish wealthy defendants. In most cases, a defendant who has successfully
fulfilled the conditions of probation for the entire period of probation has an absolute
statutory right to have the charges against him or her dismissed. ([§] 1203.4,
subd. (a)(1).) The defendant must be ‘released from all penalties and disabilities
resulting from the offense with which he or she has been convicted,’ with the exception
of driver’s license revocation proceedings. (Ibid.; Veh. Code, § 13555.) But if a
probationer cannot afford the mandatory restitution fine, through no fault of his or her
own he or she is categorically barred from earning the right to have his or her charges
dropped and to relief from the penalties and disabilities of the offense for which he or she
has been on probation, no matter how completely he or she complies with every other
condition of his or her probation. Instead, the indigent probationer must appeal to the
discretion of the trial court and must persuade the court that dismissal of the charges and
relief from the penalties of the offense is in the interest of justice. ([§] 1203.4,
subd. (a)(1).)” (Id. at pp. 1170-1171.) The appellate court impliedly found these
differences violated an indigent person’s right to due process. (See id. at pp. 1171-1172.)
The appellate court concluded in Dueñas that “due process of law requires the trial
court to conduct an ability to pay hearing and ascertain a defendant’s present ability to
pay before it imposes court facilities and court operations assessments under . . .
section 1465.8 and Government Code section 70373.” (Dueñas, supra, 30 Cal.App.5th at
36
p. 1164.) It also concluded that although “section 1202.4 bars consideration of a
defendant’s ability to pay unless the judge is considering increasing the fee over the
statutory minimum, the execution of any restitution fine imposed under this statute must
be stayed unless and until the trial court holds an ability to pay hearing and concludes that
the defendant has the present ability to pay the restitution fine.” (Ibid.)
3. Forfeiture Rule
The People argue that defendant forfeited his Dueñas claim because he did not
raise it below and because there was no existing case law foreclosing the due process
challenge that he now raises.
Here, the trial court imposed the minimum restitution fine of $300.
Section 1202.4, subdivision (c), prohibited the court from considering ability to pay in
imposing the minimum. That provision stated in pertinent part at the time of defendant’s
offenses in 2015 and at the time of sentencing in May of 2017, and still does state in
pertinent part: “The court shall impose the restitution fine unless it finds compelling and
extraordinary reasons for not doing so and states those reasons on the record. A
defendant’s inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the minimum fine . . . .”
(Stats. 2012, ch. 873, § 1.5; Stats. 2016, ch. 37, § 3.)
We are well aware that as a general rule, a criminal defendant’s failure to object to
financial obligations imposed upon a grant of probation or sentencing constitutes
forfeiture of any appellate challenges to them. (See People v. Aguilar (2015) 60 Cal.4th
862, 864 [forfeiture rule applies to challenges to probation-related costs and appointed
counsel fees]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854, 858 [forfeiture rule
applies to challenges to probation supervision and presentence investigation fees].)
Nevertheless, “[r]eviewing courts have traditionally excused parties for failing to raise an
issue at trial where an objection would have been futile or wholly unsupported by
37
substantive law then in existence. [Citations.]” (People v. Welch (1993) 5 Cal.4th 228,
237-238.)
“In determining whether the significance of a change in the law excuses counsel’s
failure to object at trial, we consider the ‘state of the law as it would have appeared to
competent and knowledgeable counsel at the time of the trial.’ [Citation.]” (People v.
Black (2007) 41 Cal.4th 799, 811.) The forfeiture rule does not apply “ ‘when the
pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel
to have anticipated the change.’ [Citations.]” (Id. at p. 810.) In applying the rule, we
focus on “practical considerations as to what competent and knowledgeable members of
the legal profession should reasonably have concluded the law to be.” (People v. De
Santiago (1969) 71 Cal.2d 18, 23.)
In People v. Long (1985) 164 Cal.App.3d 820, an appellate court rejected the
defendant’s argument that “[n]otwithstanding the apparently mandatory language of
[former] section 1202.4, subdivision (a), . . . imposition of the $1,000 restitution fine at
the time of his sentencing without consideration of his ability to pay constituted a denial
of due process.” (Id. at p. 824.) The court concluded that the imposition of a $1,000
restitution fine involved “no constitutional infirmity” since there was no suggestion that
payment of the fine would be a condition of the defendant’s release on parole or that his
inability to pay the fine might result in further incarceration. (Id. at p. 828.) This has
been the legal understanding for decades.
At the time of sentencing on March 6, 2017, the trial court was statutorily
compelled to impose the mandatory assessments (§ 1465.8; Gov. Code, § 70373) and the
minimum restitution fine (§ 1202.4, subds. (b), (c)). Dueñas was not decided until 2019.
In a footnote, the appellate court in Dueñas disagreed with the due process
analysis in Long. (Dueñas, supra, 30 Cal.App.5th at p. 1172, fn. 10.) In Dueñas, the
court took the unprecedented position that merely imposing an assessment or restitution
fine without first considering a criminal defendant’s ability to pay violated the state and
38
federal Constitutions “because it simply punish[ed] [the defendant] for being poor.”
(Id. at p. 1160.) “[N]o California court prior to Dueñas had held it was unconstitutional
to impose fines, fees or assessments without a determination of the defendant’s ability to
pay. . . . When, as here, the defendant’s challenge on direct appeal is based on a newly
announced constitutional principle that could not reasonably have been anticipated at the
time of trial, reviewing courts have declined to find forfeiture. [Citations.]” (People v.
Castellano (2019) 33 Cal.App.5th 485, 489.)
We conclude that the forfeiture rule does not apply because defense counsel could
not have been expected to reasonably anticipate the change in the law represented by
Dueñas. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1034 (Jones).)
4. Remand Not Required under Dueñas
The People maintain that it can be presumed that defendant, who has been
sentenced to 36 years in prison, has “the ability to satisfy the imposed assessments and
[restitution] fine though his prison wages.” They assert that defendant’s due process
claim fails because the record does not disclose that he will be unable to satisfy the
challenged assessments and restitution fine. Defendant contends that paid work may not
be available to him in prison and that, even if it is, the record does not demonstrate that
he could earn enough to pay those amounts while in prison.
As indicated, the defendant in Dueñas was “an indigent and homeless mother of
young children.” (Dueñas, supra, 30 Cal.App.5th at p. 1160) “She ha[d] cerebral palsy,
and because of her illness she [had] dropped out of high school and [did] not have a job.”
(Ibid.) Unlike defendant Dueñas whose inability to pay going forward was evident,
defendant has not cited any evidence in the appellate record that supports his asserted
inability to pay, “beyond the bare fact of his impending incarceration.” (People v.
Gamache (2010) 48 Cal.4th 347, 409.) He chose not to give a statement to the probation
officer preparing the presentence probation report. There are no facts in the record before
39
us to suggest that defendant, who is now only 50 years old, will be unable to work in
prison.
Defendant has been sentenced to a lengthy prison term. Section 2700 states in
part: “The Department of Corrections shall require of every able-bodied prisoner
imprisoned in any state prison as many hours of faithful labor in each day and every day
during his or her term of imprisonment as shall be prescribed by the rules and regulations
of the Director of Corrections.” (See Cal. Code of Regs., tit. 15, § 3040.) The pay rate
for an inmate’s paid assignment is “based upon the technical skill and productivity
required for the assignment.” (CDCR 2019 Department Operations Manual § 51120.5.2,
p. 355; see Cal. Code Regs., tit. 15, § 3041.2, subd. (a).) The general pay schedule for
inmates establishes the hourly and monthly pay rates, and the very lowest pay rate for the
very lowest skill level is set at $0.08 per hour or $12 per month, for full time
employment. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a); CDCR 2019 Department
Operations Manual § 51120.6, p. 355.) The highest monthly rate of pay is presently set at
$56. (CDCR 2019, supra § 51120.6, p. 355.) While the wages are not much, they would
add up over time, assuming that defendant, who has not shown or claimed otherwise on
appeal, is physically capable of working.
While “[a]n inmate’s assignment to a paid position is a privilege dependent on
available funding, job performance, seniority and conduct” (Cal. Code Regs., tit. 15,
§ 3040, subd. (k)), we do not accept that defendant necessarily will be unable to pay the
challenged assessments and restitution fine due to indigency. (See, e.g., § 1202.4,
subd. (d) [“Consideration of a defendant’s inability to pay may include his or her future
earning capacity.”]) In addition, it is not apparent on this record that defendant will have
no other future sources of money, such as gifts, while in prison (cf. People v. Potts (2019)
6 Cal.5th 1012, 1055 [capital defendant had represented that “his only source of income
was the small gifts he occasionally received”], 1057, fn. 13), some of which could be
40
applied toward the restitution fine. (See, e.g., § 2085.5, subds. (a), (c), (e), (j), (m);
Cal. Code Regs., tit. 15, § 3097, subds. (d)-(j).)
Courts have generally accepted that a defendant’s ability to pay includes the
prospect of earning wages in prison. (See People v. Hennessey (1995) 37 Cal.App.4th
1830, 1837; People v. Frye (1994) 21 Cal.App.4th 1483, 1487; see also Jones, supra, 36
Cal.App.5th at p. 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.)
Consequently, we conclude that a remand to determine defendant’s ability to pay as was
done in Dueñas is unnecessary to comport with due process.6
Aside from invoking Dueñas, defendant has not presented any legal analysis or
cited legal authorities to support his assertion that the court violated his federal
constitutional rights under the Eighth Amendment’s excessive fines clause and his federal
due process and equal protection rights by imposing the court facilities assessment, the
court operations assessment, and a restitution fine without first finding that he had the
ability to pay. We deem constitutional arguments beyond Dueñas’s holding to be
forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793; Cal. Rules of Court,
rule 8.204(a)(1)(B); see also People v. Nunez and Satele (2013) 57 Cal.4th 1, 51.)
H. Amendment of the Abstract of Judgment
Defendant argues that the abstract of judgment must be amended to accurately
reflect the firearm enhancements attached to counts 1, 2, 4, and 5. The People concede
the point. As to counts 1, 2, and 5, the jury found true the firearm enhancement
allegations under section 12022, subdivision (a)(1). As to count 4, the jury found true the
firearm allegation under section 12022.53(b). The original abstract of judgment does not
correctly reflect those enhancements. After resentencing upon remand, the trial court
must ensure that an amended abstract of judgment correctly reflecting the sentence,
including the firearm enhancements ultimately imposed, is prepared.
6
In light of our conclusion, we do not decide in this appeal whether due process
requires an ability-to-pay hearing before the court imposes an assessment or fine.
41
IV. DISPOSITION
The judgment is reversed. We remand for a new sentencing hearing at which the
trial court shall (1) determine whether to exercise its discretion pursuant to section 1385
to strike the 10-year firearm enhancement (§ 12022.53(b)), (2) determine whether to
exercise its discretion pursuant to section 1385 to strike the five-year enhancement for a
prior serious felony conviction (§ 667(a)), (3) stay the punishment imposed for either the
robbery (count 5) or the assault with a firearm (count 6) pursuant to section 654, and
(4) resentence defendant accordingly and ensure that an amended abstract of judgment is
correctly prepared.
42
_________________________________
ELIA, J.
WE CONCUR:
_______________________________
GREENWOOD, P.J.
_______________________________
GROVER, J.
People v. Yanez
H044528