People v. Thomas CA2/3 ( 2021 )

Filed 10/29/21 P. v. Thomas CA2/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B288172
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA432214-02
v.
LAVON TEVELL THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Curtis B. Rappe, Judge. Affirmed.
Danalynn Pritz, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Lavon Tevell Thomas of first degree
murder and second degree robbery, and found true allegations
that Thomas was armed with a firearm, committed the murder
during the robbery, and personally and intentionally discharged
the firearm, and that the crimes were gang-related.
Among other contentions, Thomas argues the trial court
erred by instructing the jury to consider an eyewitness’s certainty
in evaluating the accuracy of an identification under CALCRIM
No. 315. We initially rejected this challenge, recognizing that
at “the time of [Thomas’s] trial, at least two California Supreme
Court decisions had upheld the inclusion of the certainty
language in the instruction.” After we filed our opinion, the
Supreme Court granted review in this matter and decided
People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke), concluding
the certainty instruction does not violate due process, but
“acknowledg[ing] the current version of the instruction might
confuse jurors about the relationship between confidence
and accuracy” of an identification. (Id. at pp. 661, 666.)
Our high court then transferred the matter back to this court
with directions to vacate our initial opinion and reconsider
the cause in light of Lemcke. The parties filed supplemental
briefs discussing Thomas’s instructional error argument and
the Lemcke opinion. (See Cal. Rules of Court, rule 8.200(b)(1).)
We have considered the parties’ supplemental briefs and
conclude, consistent with Lemcke, Thomas’s due process rights
were not violated and he was not prejudiced by the instruction
in any event. We affirm.
2
BACKGROUND
An amended information charged Thomas with murder
(Pen. Code,1 § 187, subd. (a)) (count 1) and second degree robbery
(§ 211) (count 2). In count 1, the information alleged that a
principal was armed with a firearm (§ 12022, subd. (a)(1)),
and the murder was committed during a robbery (§ 190.2,
subd. (a)(17)). In both counts 1 and 2, the information alleged
Thomas personally and intentionally discharged a firearm
causing death (§ 12022.53, subds. (b)–(d)), and the crimes were
gang-related (§ 186.22, subd. (b)(1)(C)). The prosecution did
not seek the death penalty. Thomas pleaded not guilty. After
trial, a jury found him guilty of first degree murder in count 1
and second degree robbery in count 2, and found all the
allegations true. The court sentenced Thomas to life without
the possibility of parole (LWOP) and 25 years to life for the
firearm enhancement on count 1, staying the sentence on count 2
under section 654. Thomas filed a timely notice of appeal.
1. The robbery and murder
On the night of November 2, 2014, 20-30 costumed guests
between 35 and 50 years old were drinking alcohol and enjoying
themselves at a Halloween party on West 77th Street in
Los Angeles, at the house of Sandra Neeley. Neeley’s sister
and co-host Sonja Wheeler, Wheeler’s boyfriend Darren Paul,
and Paul’s cousin Lisa Bryant also attended the party.
A planned photograph booth had been cancelled because
of rain. Don Sims, Jr., and Adam Blair arrived, intoxicated and
not in costume. After saying hello, Sims began photographing
1 Statutory references are to the Penal Code unless
otherwise indicated.
3
the guests, using a camera with a large screen that displayed
the photographs. The hired deejay, William Norman, knew
Sims and Blair, and Neeley told Wheeler she had invited them.
Toward the end of the party, Bryant called her daughter
Ralisha Pettaway, and then went outside. Sims walked out
behind her. Paul told Bryant, Sims had been “ ‘taking pictures
of your pussy, your ass and your titties,’ ” and Bryant asked
to see the photographs. Pettaway drove up in her black Dodge
Charger, and Bryant walked up to the open driver’s side window.
She could not see anyone else in the car because the windows
were tinted. After Sims showed Bryant a full body shot, zooming
in on her private parts, Bryant and Pettaway asked him to
delete the photograph and other inappropriate images, and
Sims refused. Paul also was upset when he saw some of the
photographs of Wheeler and other women.
Bryant went back into the house to retrieve her purse
and Sims also went back inside. When Bryant came back outside
to put things in her car, she walked down the street to where
Pettaway had parked the Charger. Sims was sitting in his white
Jeep next to the Charger. Pettaway was asking Sims if he had
deleted the photographs, and he said not yet. Other partygoers
streamed outside and began to yell, demanding that Sims delete
the photographs. Sims first refused, and then told Bryant he
would delete the photographs; but after going through them on
his camera, he said: “ ‘Fuck that, I ain’t deleting nothing. Fuck
all you bitches.’ ” Paul, Norman, and others continued to ask him
to delete the photographs and Sims refused. Several arguments
continued for about 10 minutes, and Bryant heard Sims’s friend
Blair say some “gang stuff,” including the words “Blood” and
“Inglewood Family.” Bryant told Paul not to confront Sims.
4
As she and Paul began to walk away, Bryant heard what sounded
like a gunshot. She ran, got into her car, and left, at some point
calling Pettaway to check on her.
A security video showed Pettaway’s Charger pulling up
next to the Jeep. Pettaway got out of the driver’s side, and a
man Bryant didn’t know, wearing a dark hoodie, got out of the
passenger side. Pettaway and the man argued with Sims, and
the man got back into the Charger. Then Pettaway reentered
the Charger, and the man got out and walked to the back of
the Jeep. The video showed a flash, and the man returning to
the passenger seat of the Charger. Bryant was not sure whether
the man was Thomas.
Pettaway testified she had been dating Thomas for a year,
but Bryant (her mother) had never met him. He was in the
passenger seat of the Charger when she arrived at the end of
the party. She had not come earlier because she was pregnant
by Thomas and suffering from morning sickness. When Pettaway
saw the provocative photographs, she asked Sims to delete them
and he refused. After Sims came back out and got into his Jeep,
Pettaway got a bottle out of her trunk, walked down the street,
and threw the bottle at his car. She then drove over to the Jeep,
and she and Thomas got out of the car and argued with Sims,
who again refused to delete the photographs. Partygoers,
including Bryant, Paul, and Wheeler, joined in the argument.
Pettaway turned around to talk to a friend, and heard a shot.
She and Thomas got back into the Charger and she drove away.
She did not see a gun or a camera. She drove to Thomas’s house,
where they smoked weed.
For “safety reasons,” Pettaway initially told the police she
was alone in the Charger. She did not want to involve anyone
5
or to snitch on Thomas, who was a member of the Brims gang
and went by “Evil.” She kept her relationship with Thomas
secret because her boyfriend, a former Inglewood Family member
also known as “Evil,” was jailed in another state. Pettaway
was charged jointly with Thomas. She pleaded guilty to robbery
and admitted a principal was armed with a firearm. She received
a six-year prison sentence, on the condition that she testify
truthfully at Thomas’s trial.
Paul testified he was out near the Jeep, trying and failing
to convince Sims to delete the photographs. Sims was holding
the camera, and Sims and Blair were cursing and laughing.
Blair said, “ ‘I’ll make a phone call and I’ll have my boys come
over here,’ ” and said something about “Brims,” “Blood,” and
“Inglewood.” Norman then came out and got involved. Just
as Paul walked away, he heard a pop. Paul did not see who
fired the shot, and did not see Thomas that night.
Wheeler testified that after Sims started taking
photographs at the party, she left to check on her son. When
she returned, people were down the street arguing, saying,
“ ‘[d]elete the pictures.’ ” She heard Blair say “Brim.” Wheeler
tried to get everyone to come back inside so they would not
disturb the neighbors, and asked Norman to help her. As she
walked back to the house she heard a shot, turned around,
and saw Sims fall out of the Jeep and onto the ground. She
did not know Sims or Blair before the party, and did not
recognize Thomas when she saw him in court.
Norman testified he was hired as a deejay and did not
drink alcohol at the party. He knew Sims and Blair. Toward
the end of the party, Norman overheard Bryant on the phone,
sounding upset and saying something about photographs on
6
Sims’s camera.2 Sims came in and told Blair, “ ‘[l]et’s go,’ ”
and they left. Shortly after, Norman heard arguing and walked
outside to the Jeep. Sims sat in the driver’s seat with the camera
on his lap.
Norman stood inside the V-shape of the Jeep’s open door
and asked Sims what was going on; Sims wouldn’t tell him.
A woman behind Norman was saying, “ ‘Give up the camera.’ ”
Suddenly, Norman saw a red laser light on Sims’s chest. Blair
was arguing with a man, saying, “ ‘[t]his is family,’ ” and the man
said: “ ‘F this, this is Brims.’ ” Norman told Blair to shut up and
stay low, but Blair said he didn’t care. Norman told Sims to give
up the camera and Sims refused. The man who had been arguing
with Blair came up right behind Norman and pointed a gun at
Sims’s head. Sims said: “ ‘Get the gun out of my face, cuz,’ ”
and slapped the gun down. Norman backed up and said: “ ‘Give
up the camera. This dude got a gun.’ ” Suddenly, Norman felt
the man with the gun brush past him to grab the camera out
of Sims’s lap, hitting Norman in the stomach. Sims started to
get out of the car, and “the guy . . . just shot, and that’s when
[Sims] just fell face first.” A woman’s voice said “ ‘[g]et in the car,
get in the car,’ ” and Norman ran away.
Norman described the gun as a small revolver with a
laser sight, maybe a .38 snubnose. Asked at trial if the gun that
killed Sims looked something like the gun that Thomas held in
a photograph marked as Exhibit 25, Norman said he couldn’t
2 The parties stipulated that Norman’s brother George would
testify that around 30 minutes before the shooting, he heard
Bryant on the phone saying: “You need to hurry up and get here.
He is getting ready to leave,” just before Bryant walked outside
with Sims.
7
tell because the photograph was foggy (“I can’t really see that
picture.”). The red dot on Thomas’s hand in the photograph,
however, looked like the red light he saw on Sims’s chest that
night. Norman did not recognize Thomas as the shooter, but
thought he had similar characteristics.
Blair testified he arrived at the party with his friend Sims
and drank a cup of Hennessey. Blair followed Sims when he
headed outside about an hour and a half later. Blair saw three
women and a man arguing with Sims, who was sitting in the
driver’s seat of his white Jeep with the door open. The argument
went on for 10 to 15 minutes, with the women saying, “ ‘[d]elete
the pictures off the camera.’ ” Blair joined in, saying, “ ‘[t]his is
family,’ ” meaning he would handle it and Sims was like family
to him; Blair was not an Inglewood Family member and did not
intend a gang reference. When Blair turned to tell Sims to delete
the photographs, he saw Thomas pull out a black snub-nose
infrared revolver that looked like a .38. Blair knew the gun
had a laser because it was nighttime and he saw the laser dot
on Sims’s forehead. Thomas extended his arm and shot Sims
in the head. Thomas then hopped into the passenger side of a
car facing in the opposite direction to the Jeep, and the car
drove off. Later, Blair circled the first photograph in a six-pack
photographic lineup and said it was the shooter; the photograph
was of Thomas, and Blair also identified Thomas in court as
the shooter.
Blair testified the firearm in the Exhibit 25 photograph
looked “Similar. I believe it was black, like I said.” Asked
whether the handle was black, Blair testified: “[I]t was kind
of hard, nighttime. . . . I am not really looking at the handle,
I am looking at the infrared beam being pointed at [Sims].”
8
The barrel of the gun was black. Blair agreed the gun in
Exhibit 25 had a silver barrel.
The police never found the camera or the gun, and
recovered no physical evidence from the scene. The medical
examiner who examined the body testified Sims died from
a gunshot wound to the top of his head on the left side. She
recovered the bullet from Sims’s neck.
The prosecution’s firearms expert testified that the bullet
retrieved from Sims’s neck was a .38 caliber class consistent with
a nine millimeter, a .38, or a .357 magnum weapon. The rifling
on the exterior of the bullet showed five lands and five grooves,
and the bullet rifled to the right. Smith and Wesson was
one of the three most common manufacturers whose guns
would produce the rifling on the bullet, and the “five right”
characteristic was very typical of Smith and Wesson. The
vast majority of the gun models that could have fired the bullet
were revolvers. Both revolvers and semi-automatic pistols came
in silver and black, and both could have built-in or aftermarket
laser sights. The casing stays in a revolver after the bullet
is fired.
Shown Exhibit 25, the photograph of Thomas holding
a gun, the expert testified: “I don’t know exactly what this
gun-shaped object is, but if it is a working firearm, it appears
to be a small, snub-nosed revolver, and they do come in a variety
of calibers.” It was possible a laser was attached. She could not
state with scientific certainty anything about the firearm in the
photograph, but it could not be ruled out as the weapon that fired
the bullet. “This picture is fairly grainy. It’s hard to determine
very much out of it.”
9
2. Gang evidence
LAPD Officer Joshua Medina had contacted Thomas in
Brims territory many times. On May 21, 2013, Thomas admitted
he was a Brims member with the moniker “Evil,” showing Officer
Medina his Brims tattoos. Brims was an older clique of the
Bloods gang. Inglewood Family was also a Bloods gang. Officer
Medina was not aware of any rivalry between Inglewood Family
and Brims, both of which were rivals of the Rollin’ 60s Crip gang.
Gang expert Officer Patrick Lane testified Brims territory
was around Harvard Park, and the gang enforced its territory
with violence such as murders, shootings, and assaults with
a deadly weapon. The Brims gang color was red, and they used
sports teams on their logos (San Diego Padres or SD, for the
Six Deuce or 62 subset, and Boston Red Sox or B, for Bloods),
the Bentley logo, and hand gestures. The 62 Brims had about
150 active members. The Halloween party was in the territory
of the 83rd Street Gangster Crips (Eight Trey), who generally
got along with the Brims, as did the Inglewood Family gang.
Gang culture was about respect, and if a Brims was in Eight Trey
territory and something happened, the Brims member would
identify himself, to take credit as an individual, to inspire fear
of the gang, and to intimidate witnesses.
Officer Lane knew from his more than 10 contacts with
Thomas, Thomas’s own admission, his tattoos, items found in
his home, and photographs, that Thomas was a Six Deuce Brims
called “Evil Brim” or “Baby Evil.” The gang’s primary activities
were residential burglaries, shootings, murders, and assaults
with a deadly weapon, and gang members had committed
predicate offenses. Given a hypothetical tracking the events
at the Halloween party, Officer Lane opined the robbery and
10
shooting was for the benefit of the Brims, because the Brims gang
name was thrown out in response to “Family” as the situation
escalated. The victim had provoked and challenged the shooter
by slapping the gun away and by saying “cuz,” a term used by
Crips members. The shooter had to react so not to appear weak.
Taking the camera would intimidate others and provide money
to support future Brims criminal activity.
3. Defense evidence
When Detective Iris Romero booked Pettaway after her
arrest on December 15, 2014, Pettaway asked whether someone
named “Keanon” was also being arrested and questioned.
Pettaway later clarified she was asking about Darren Paul.
Lead investigator Detective Mark Hahn testified he showed
Blair a photographic lineup and Blair said Thomas’s photograph
“ ‘really looks like [the shooter].’ ” Blair described the shooter as
a little taller than he was and shorter than Detective Hahn, who
was almost six feet tall. Thomas stood up in court to show he was
taller than Detective Hahn. Detective Hahn believed Pettaway
lied when she told him she drove to the party alone, as the
surveillance video showed someone else leave and return to the
car. The video also showed that before the police arrived, Blair
moved Sims’s body, and reached into the white Jeep three times.
DISCUSSION
1. The admission of People’s Exhibit No. 25 did not
violate due process
People’s Exhibit No. 25 showed three photographs retrieved
from Thomas’s cell phone. The photograph in issue on appeal
shows Thomas, wearing all red and sitting on a couch, holding
what appears to be a gun in his right hand and pointing it at his
left hand, which is making a Crips gang sign. A red dot is visible
11
on his left hand. Thomas moved to exclude the photograph,
arguing that without evidence that it was taken before Sims
was shot, it was not relevant; there was no evidence that the gun
was the murder weapon, making the photograph more prejudicial
than probative; and the photograph was improper character
evidence. The court responded that it went to the weight of the
evidence, not its admissibility, and in the photograph Thomas
looked around the same age (18) as at the time of the crime.
The prosecutor explained the firearms expert would not testify
the gun was the murder weapon, but would not rule it out. The
court admitted the photograph, stating the weight of the evidence
was for the jury to decide.
In closing, the prosecutor argued Blair said the gun in
the photograph was like the .38 snubnose with a laser that killed
Sims. The .38 snubnose was a small caliber revolver, like most
of the firearms that could have discharged the bullet retrieved
from Sims’s body. In the photograph Thomas pointed a small
revolver with a laser sight at a Crips symbol, showing his
commitment to the gang, and “[t]he gun and scientific evidence
matches a photograph very similar to the photograph of
defendant with a gun.” The defense argued the photograph
was intended to make the jury dislike Thomas and to steer them
away from the truth. Blair testified the gun was black, so the
photograph did not connect Thomas to the crime. In rebuttal,
the prosecutor argued it was no coincidence that the photograph
showed Thomas dressed in red and holding a small caliber gun
with a laser. The bullet “tie[d] into” the photograph and the
scientific evidence that a small caliber gun shot the bullet
that killed Sims.
12
Thomas argues the court abused its discretion in admitting
the photograph because it was not relevant, citing People v. Riser
(1956) 47 Cal.2d 566. Riser held: “When the specific type of
weapon used to commit a homicide is not known, it may
be permissible to admit into evidence weapons found in the
defendant’s possession some time after the crime that could
have been the weapons employed. There need be no conclusive
demonstration that the weapon in defendant’s possession was
the murder weapon. [Citations.] When the prosecution relies,
however, on a specific type of weapon, it is error to admit
evidence that other weapons were found in his possession, for
such evidence tends to show, not that he committed the crime,
but only that he is the sort of person who carries deadly
weapons.” (Id. at p. 577.)
In this case the murder weapon was never found.
Witnesses testified the gun was a small revolver with a laser
sight. The expert testified the photograph appeared to show
a small revolver that could have fired the bullet that killed Sims.
The prosecution argued the gun in the photograph could have
been the murder weapon. Our Supreme Court recently addressed
similar facts: “[T]he murder weapon was never found, but the
evidence showed it was likely a nine-millimeter firearm. The
firearm the witnesses testified about could easily have been
the one used in the murders. ‘Although the witnesses did not
establish the gun necessarily was the murder weapon, it might
have been. Unlike People v. Riser, supra, 47 Cal.2d at page 577,
this evidence did not merely show that defendant was a person
who possesses guns, but showed he possessed a gun that might
have been the murder weapon . . . . The evidence was thus
relevant and admissible as circumstantial evidence that he
13
committed the charged offenses.’ (People v. Carpenter (1999)
21 Cal.4th 1016, 1052 [ ]; see People v. Cox (2003) 30 Cal.4th 916,
956 [ ] [similar].) [¶] Evidence that shortly before the murders
defendant possessed a firearm that could have been the murder
weapon was similarly relevant and admissible as circumstantial
evidence that he committed the murders. Contrary to
defendant’s additional argument, we see no abuse of discretion
in not excluding the evidence as unduly prejudicial under
Evidence Code section 352.” (People v. Sanchez (2019) 7 Cal.5th
14, 55–56.)
Thomas argues the prosecution failed to establish when
the photograph was taken; the gun expert could not say with
scientific certainty that the gun Thomas held in the photograph
was the same caliber as the murder weapon, or that the gun in
the photograph had a laser sight; and the gun in the photograph
was a different color than the murder weapon. First, as the
court noted, in the photograph Thomas appeared to be around
the same age he was at the time Sims was murdered. Second,
the gun expert testified that she could not rule out the gun in
the photograph as the murder weapon. She was not required
to testify with “scientific certainty” that it was. Third, Blair
testified the revolver used to shoot Sims had a black barrel, and
the gun in the photograph had a silver barrel. Norman testified
he saw a small revolver at the time of the shooting. Norman
described the photograph as so “foggy” that he couldn’t see
the gun clearly, although he could see the red laser dot; he said
nothing about the color of the gun that killed Sims or the gun
in the photograph. The firearm expert said the photograph was
so grainy that she could not tell exactly what the gun-shaped
14
object was, but it appeared to be a small snub-nosed revolver
that could have fired the bullet that killed Sims.
We have reviewed Exhibit 25. The photograph shows
Thomas holding a gun that may at least in part be silver,
although the color of the barrel is unclear. The bad quality
of the photograph, and the equivocal testimony about the color
of the gun, diminishes the weight of the photograph as evidence
that the gun in the photograph was the murder weapon, but it
does not eliminate the possibility that it was.
Thomas faced more than the charges of robbery and
murder. He also faced allegations that he robbed and murdered
Sims for the benefit of a street gang. The photograph was
relevant to show that Thomas was a Brims member (his red
clothing) whose rivals were Crips (he pointed the weapon at his
left hand making a Crips gang sign). The photograph therefore
was not simply bad character evidence related to the murder
charge. (People v. Prince (2007) 40 Cal.4th 1179, 1249 [knives
not used to murder victims bore some relevance to weapons
used in other charged crimes and were admissible]; People v. Cox
(2003) 30 Cal.4th 916, 956–957.) The “circumstantial relevancy”
of the photograph in Exhibit 25 is clear, even if the gun shown
was not used in the killing, and the court did not abuse its
discretion in admitting the photograph into evidence. (People
v. Lane (1961) 56 Cal.2d 773, 785.) Because the court did not
abuse its discretion in admitting the evidence, there was no
constitutional error. (People v. Winbush (2017) 2 Cal.5th 402,
458.)
15
2. The instruction on witness certainty did not violate
due process
Thomas argues the trial court erred and violated his due
process rights by giving the portion of CALCRIM No. 315 that
instructs the jury to consider, when evaluating identification
testimony, “How certain was the witness when he or she made
an identification?” Thomas points to scientific studies and case
law recognizing a weak correlation between a witness’s certainty
and the accuracy of a witness’s identification.
In our original opinion, we concluded there was no error,
relying on two California Supreme Court decisions that upheld
the instruction’s certainty language. (See People v. Sánchez
(2016) 63 Cal.4th 411, 461–463; People v. Johnson (1992) 3
Cal.4th 1183, 1231–1232.) In Sánchez, our high court noted
that a number of out-of-state cases had disapproved certainty
instructions based on “scientific studies that conclude there is,
at best, a weak correlation between witness certainty and
accuracy.” (Sánchez, at pp. 461–462.) But the Sánchez court
declined to reexamine the issue, explaining there were a mix
of certain and uncertain identifications at trial, and it was
“not clear that even those [out-of-state] cases would prohibit
telling the jury it may consider this factor” in a case where the
defendant “would surely want the jury to consider how uncertain
some of the identifications were.” (Id. at p. 462.) Thus, the
Sánchez court concluded, “Any reexamination of our previous
holdings in light of developments in other jurisdictions should
await a case involving only certain identifications.” (Ibid.)
Our Supreme Court granted review in Lemcke to reexamine
whether instructing a jury to consider an eyewitness’s level of
certainty when evaluating an identification violates a defendant’s
16
federal and state due process rights. (Lemcke, supra, 11 Cal.5th
at pp. 653–654.) Unlike in Sánchez, in Lemcke, there was not a
mix of certain and uncertain identifications; rather, the robbery
victim’s identification testimony, and her confirmation that she
had previously identified the defendant in a photographic lineup,
constituted the “primary evidence” establishing the defendant’s
guilt at trial. (Lemcke, at p. 646.)
On appeal, the defendant in Lemcke argued instructing
the jury to consider an eyewitness’s level of certainty, without
clarifying the limited correlation between certainty and accuracy,
violated due process by lowering the prosecution’s burden of
proof to the extent it caused “jurors to ‘equat[e] certainty with
accuracy, when science establishes otherwise.’ ” (Lemcke, supra,
11 Cal.5th at p. 657.) Our Supreme Court rejected the argument,
concluding CALCRIM No. 315’s instruction on witness certainty
“does not direct the jury that ‘certainty equals accuracy,’ ”
“[n]or does the instruction state that the jury must presume
an identification is accurate if the eyewitness has expressed
certainty.” (Lemcke, at p. 657.) Moreover, the court observed,
although “the wording of the instruction might cause some jurors
to infer that certainty is generally correlative of accuracy,” the
defendant “was permitted to present expert witness testimony
to combat that inference.” (Id. at pp. 657–658.) And, additional
instructions regarding the presumption of innocence and the
prosecution’s burden to establish guilt beyond a reasonable doubt
further undercut the defendant’s contention that the certainty
language lowered the prosecution’s burden of proof. (Id. at
p. 658.) Thus, “when considered ‘ “in the context of the
instructions as a whole and the trial record,” ’ ” the Lemcke
court concluded “listing the witness’s level of certainty as
17
one of 15 factors the jury should consider when evaluating an
eyewitness identification did not render [the defendant’s] trial
fundamentally unfair or otherwise amount to a due process
violation.” (Id. at p. 661.)
However, while the Lemcke court rejected the contention
that the certainty instruction in CALCRIM No. 315 violated the
defendant’s due process rights, our Supreme Court nevertheless
agreed with amici curiae that this portion of the instruction
“tends to reinforce” the “common misconception . . . that an
identification is more likely to be reliable when the witness
has expressed certainty.” (Lemcke, supra, 11 Cal.5th at p. 647.)
The court therefore “refer[red] the matter to the Judicial Council
of California and its Advisory Committee on Criminal Jury
Instructions to evaluate whether or how the instruction might
be modified to avoid juror confusion regarding the correlation
between certainty and accuracy,” and in the meantime, directed
trial courts to “omit the certainty factor from CALCRIM No. 315
unless the defendant requests otherwise.” (Id. at pp. 647–648.)
In light of our Supreme Court’s holding in Lemcke, we are
again compelled to reject Thomas’s contention that instructing
the jury with the certainty portion of CALCRIM No. 315
violated his due process rights. (See Lemcke, supra, 11 Cal.5th
at pp. 657–661.) Moreover, even if the trial court had omitted
the certainty factor, as Lemcke now directs, it is our judgment,
based on a review of the entire record, that there is no reasonable
probability that Thomas would have achieved a more favorable
result at trial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)
Unlike in Lemcke, here, the eyewitness identification
testimony was neither uniformly certain, nor was it the “primary
evidence” establishing Thomas’s guilt at trial. (Lemcke, supra,
18
11 Cal.5th at p. 646.) On the contrary, the record shows the
crux of the prosecution’s case was Pettaway’s identification
of Thomas as her passenger, coupled with the security video
showing the shooter got out of and returned to the passenger seat
of Pettaway’s car. While the evidence showed Blair had made
equivocal statements about his certainty when he first identified
Thomas as the shooter, his testimony that the shooter hopped
into the passenger side of the car facing in the opposite direction
of the victim’s Jeep—i.e., Pettaway’s Charger—corroborated
the critical video evidence. As for Norman, his identification
was indisputably uncertain.
As our high court explained in Lemcke, the “misleading
effect” that threatens to engender juror confusion about
eyewitness certainty—“that the jury is prompted to believe
there is a strong correlation between certainty and accuracy
despite empirical research showing just the opposite—is not
present when a witness has expressed doubt regarding the
identification.” (Lemcke, supra, 11 Cal.5th at p. 669 & fn. 19,
italics added.) Here, there was evidence that both eyewitnesses
expressed uncertainty about their identification of Thomas,
thus obviating the risk that compelled the Lemcke court to refer
the matter to the Judicial Council. (See id. at pp. 647–648,
669 & fn. 19; see also Sánchez, supra, 63 Cal.4th at p. 462
[“ ‘[certainty] instruction has merit in so far as it deals with
the testimony of a witness who expressed doubt about the
accuracy of her identification . . .’ ”].) Indeed, given this evidence
of uncertainty, it is apparent from our review of the record
that the primary evidence establishing Thomas’s guilt was not
the eyewitness identification testimony, but rather Pettaway’s
identification of Thomas as her passenger and the video footage
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showing the shooter got out of and returned to the passenger
seat of Pettaway’s car. Because the certainty instruction could
not have affected the jury’s assessment of the credibility of that
evidence, it is not reasonably probable that Thomas would have
obtained a more favorable outcome had the trial court omitted
the certainty factor from CALCRIM No. 315 at his trial.
3. The felony-murder special circumstance allegation
is not unconstitutional
The jury found Thomas committed first degree murder and
found true that Thomas killed Sims while engaged in committing
robbery. “Once the jury finds the defendant has committed first
degree murder, the felony-murder special circumstance applies if
the murder was committed during the commission or attempted
commission of a statutorily enumerated felony, and subjects the
defendant to a sentence of death or of life without the possibility
of parole.” (People v. Andreasen (2013) 214 Cal.App.4th 70, 80.)
Robbery is an enumerated felony. (§ 190.2, subd. (a)(17)(A).)
Thomas contends that the felony-murder special circumstance is
unconstitutional, because it allows a defendant who is the actual
killer to be eligible for the death penalty even if the jury does not
find the defendant had a culpable mental state.
We quote our Supreme Court: “We have repeatedly held
that when the defendant is the actual killer, neither intent to
kill nor reckless indifference to life is a constitutionally required
element of the felony-murder special circumstance. [Citations.]
‘[W]e have also rejected the related claim that the imposition of
the death penalty under these circumstances fails to adequately
narrow the class of death-eligible offenders.’ [Citations.] We
decline to revisit these precedents here.” (People v. Jackson
(2016) 1 Cal.5th 269, 347.)
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4. The LWOP sentence is not cruel and unusual
punishment
Thomas argues his LWOP sentence violates the state and
federal constitutions’ bans on cruel and unusual punishment
because he was just over 18 years old when he killed Sims,
and new insights into brain maturation show a person’s brain
is not fully developed before the age of 25. (Thomas turned 18
in June and killed Sims in November.) Thomas raised this issue
in his sentencing memorandum, and the court denied the claim.
We agree.
In Miller v. Alabama (2012) 567 U.S. 460, the
United States Supreme Court acknowledged “children are
constitutionally different from adults for purposes of sentencing,”
as juveniles have diminished capacity and greater prospects
for reform than adults: “[T]he distinctive attributes of youth
diminish the penological justifications for imposing the harshest
sentences on juvenile offenders, even when they commit terrible
crimes.” (Id. at pp. 471–472.) Thus “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” (Id. at p. 479.) While
the death penalty may not be imposed on a juvenile, a defendant
who was 18 at the time of his crime may be sentenced to death:
“While drawing the line at 18 is subject to the objections always
raised against categorical rules, that is the point where society
draws the line for many purposes between childhood and
adulthood and the age at which the line for death eligibility
ought to rest.” (Roper v. Simmons (2005) 543 U.S. 551, 553–554;
People v. Gutierrez (2014) 58 Cal.4th 1354, 1380.)
We are bound by those decisions, and “decline [the]
invitation to conclude new insights and societal understandings
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about the juvenile brain require us to conclude the bright
line of 18 years old in the criminal sentencing context is
unconstitutional.” (People v. Perez (2016) 3 Cal.App.5th 612, 617;
People v. Argeta (2012) 210 Cal.App.4th 1478, 1482; People v.
Abundio (2013) 221 Cal.App.4th 1211, 1220–1221.) “ ‘Making
an exception for a defendant who committed a crime just five
months past his 18th birthday opens the door for the next
defendant who is only six months into adulthood. Such
arguments would have no logical end, and so a line must be
drawn at some point. We respect the line our society has drawn
and which the United States Supreme Court has relied on for
sentencing purposes, and conclude [defendant’s] sentence is
not cruel and/or unusual.’ ” (Perez, at p. 617.) Thomas’s LWOP
sentence does not violate the Eighth Amendment.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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