People v. Peek CA2/5 ( 2022 )

Filed 10/24/22 P. v. Peek CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B310103
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA153767)
v.
WILLIAM PEEK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lee W. Tsao, Judge. Affirmed.
Michelle T. LiVecchi-Raufi, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Ryan M. Smith, Deputy Attorney
General, for Plaintiff and Respondent.
In April 2020, someone jumped the counter at a
convenience store in Whittier, beat the store clerk, and stole
cigarettes. Within a week, someone jumped the counter at
another store on the same street to steal cigarettes and cash,
later returning to steal a bag of chips too. A jury determined all
three acts were committed by defendant and appellant William
Peek (defendant) and convicted him of two counts of robbery and
one count of petty theft. We are asked to decide whether one of
the robbery counts is supported by substantial evidence and
whether any of the convictions can stand in light of asserted
instructional error regarding the significance of a witness’s
certainty as to a person’s identity. We also consider whether the
use of opaque face masks during defendant’s trial—to reduce the
risk of contracting COVID-19—violated his constitutional right to
confront witnesses against him.
I. BACKGROUND
A. The Offense Conduct, as Established by the Evidence
at Trial
1. California Market robbery
Madan Kiratirai (Kiratirai) testified he was working at
California Market, a convenience store in Whittier, on the
evening of April 2, 2020. A man Kiratirai had seen before—and
who had been banned from the store because “he had done some
other things”—entered. Kiratirai asked the man to leave and
picked up a phone to call the police. The man jumped over a
counter and punched Kiratirai several times. Kiratirai fell to the
ground and the man kicked him. The man took several packs of
cigarettes and left the store.
2
When the prosecution asked Kiratirai whether his attacker
was in the courtroom, Kiratirai responded, “Everybody wearing
masks, so I can’t say.” The trial court followed up by asking
Kiratirai whether he saw anyone in the courtroom resembling his
attacker, “even though you’re not sure because everyone is
wearing a facial covering[.]” Kiratirai responded, “Yeah, I think
so,” and identified defendant. The trial court asked whether it
would “help . . . if that person removed his mask.” Kiratirai said
yes, but gave no reply when defendant lowered his mask and the
trial court asked whether that helped him identify his attacker.
The prosecution asked whether Kiratirai was afraid of his
attacker, and Kiratirai answered, “It could happen again, so I
cannot say I’m safe, right.” When the prosecution once again
asked whether defendant robbed him, Kiratirai answered, “Well,
I’m not—I’m still confused because that day was night and it is
long time . . . so I cannot say, yes, this person, because it is long
and face and lot of things change.”
Surveillance video (and derivative still images) of the
robbery did not provide a clear view of the perpetrator’s face, but
the jury was invited to compare tattoos on the perpetrator’s arms
to photos of defendant’s tattoos taken following his arrest a week
later. The prosecution aptly described the photos derived from
the California Market surveillance video as “grainy,” but it is
possible to compare the size, shape, and locations of several
tattoos, as well as the robber’s hairline. Compared in that
manner, the tattoos on the inside of the robber’s right forearm
and on his left upper arm are consistent with defendant’s tattoos,
even if the video image does not permit a conclusion that they are
necessarily the same. The robber’s hairline is also similar to
defendant’s.
3
2. 7-Eleven robbery and petty theft
Two days after the California Market robbery, defendant
robbed a 7-Eleven located on the same street in Whittier. The
store’s owner, Jatinder Jhaj (Jhaj), testified that defendant was
behaving “very erratically in the store” earlier in the day and he
told defendant to leave or he would call the police. Defendant
returned to the store some time later and an employee, Prakash
Chaulagain (Chaulagain), who was aware of the earlier
disturbance, asked him to leave. Defendant did not; instead he
jumped over the counter, threw a cash register on the floor, and
left with two packs of cigarettes and approximately $1,200.
Chaulagain testified he did not resist because he was afraid.
Chaulagain was working a few days later on April 8, 2020,
when defendant returned to the store and took a bag of chips
without paying. Chaulagain called for Jhaj, who followed
defendant and called the police.
Both Chaulagain and Jhaj identified defendant at trial,
with Jhaj expressing “100 percent” confidence in his
identification. Surveillance video from both incidents was also
admitted in evidence, and the video from April 8, 2020, shows
defendant wearing a plaid shirt and holding a bag of Doritos
chips. Whittier Police Department detective Robert Wolfe
testified defendant was arrested about 100 yards from the 7-
Eleven and had a bag of Doritos. Defendant is wearing a plaid
shirt in a booking photo taken on the day of his arrest.
B. Verdict and Sentencing
The Los Angeles County District Attorney charged
defendant in an information with two counts of second degree
4
robbery (Pen. Code,1 § 211) and one count of petty theft (§ 484,
subd. (a)). The information alleged defendant had sustained
three prior serious or violent felony convictions within the
meaning of the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12)
and section 667, subdivision (a)(1).
The jury found defendant guilty on all three counts
charged. At a subsequent hearing, the trial court found the
allegations regarding defendant’s prior convictions true and
sentenced him to serve 27 years to life in prison: 25 years to life
for the California Market robbery, a consecutive term of two
years for the 7-Eleven robbery, and a concurrent term of six
months for petty theft.
II. DISCUSSION
Defendant contends there was insufficient evidence to
establish he was the person who robbed California Market.
Although the clerk, Kiratirai, offered only a tentative
identification of defendant at trial, that is easily understood as
reticence provoked by fear of defendant. Kiratirai’s
identification, the photographic evidence, and the many
similarities between the California Market and 7-Eleven
robberies are collectively substantial evidence supporting the
jury’s verdict.
Defendant also asks us to reverse all three convictions
because the trial court gave an instruction (CALCRIM No. 315)
that permitted jurors to consider the certainty of an eyewitness’s
identification and our Supreme Court has since directed the
1
Undesignated statutory references that follow are to the
Penal Code.
5
Judicial Council to reevaluate this instruction. (People v. Lemcke
(2021) 11 Cal.5th 644, 647-648 (Lemcke).) Putting aside the
question of whether defendant forfeited the issue by failing to
request a modification to the instruction at trial, any error was
harmless. Consideration of Kiratirai’s lack of certainty could
only have benefited defendant, and the verdict would have been
the same, given the strength of other evidence, even if the jury
never heard the 7-Eleven clerks’ confidence in their
identification.
Finally, as to defendant’s contention that trial witnesses’
use of face masks while testifying violated his constitutional right
of confrontation, we follow several other cases holding the
COVID-19 pandemic warranted such policies for trials held in
2020 and jurors were still able to adequately assess witness
credibility without seeing a witness’s mouth or lower part of the
nose.
A. Substantial Evidence Supports the California Market
Robbery Conviction
When considering a challenge to the sufficiency of the
evidence to support a criminal conviction, we review the record
“‘in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Westerfield (2019) 6
Cal.5th 632, 713.) Defendant does not dispute that the offense
conduct described by Kiratirai at the California Market satisfies
the elements of robbery; his claim is only that there was
insufficient evidence to prove he was the perpetrator.
6
“Except where additional evidence is required by statute,
the direct evidence of one witness who is entitled to full credit is
sufficient for proof of any fact.” (Evid. Code, § 411; People v.
Barnwell (2007) 41 Cal.4th 1038, 1052 [“Even when there is a
significant amount of countervailing evidence, the testimony of a
single witness that satisfies the [substantial evidence] standard
is sufficient to uphold the [challenged] finding”].) Defendant
contends Kiratirai was “unable to identify [him] as the robber at
any time prior to, or during the trial,” but this is not correct.
When asked whether he saw anyone who looked like the robber
in the courtroom, Kiratirai answered, “Yeah, I think so,” and
indicated defendant was that person. Defendant’s suggestion
that this response was “vague and did not specify [defendant] as
the person that Kiratirai was referencing” is not supported by the
record.2
This is not to say, of course, that Kiratirai’s identification of
defendant was unqualified: Kiratirai could not say for certain
defendant was the perpetrator. But “‘it is not essential that a
witness be free from doubt as to one’s identity. He may testify
that in his belief, opinion or judgment the accused is the person
who perpetrated the crime, and the want of positiveness goes
only to the weight of the testimony.’ [Citation.]” (People v.
Mohamed (2011) 201 Cal.App.4th 515, 522.) In determining the
weight to assign to Kiratirai’s identification of defendant,
tentative or qualified as it was, the jury was required to consider
2
After Kiratirai described the person’s attire, the trial court
confirmed the person’s seating position and, after asking
Kiratirai whether it would help if the person removed their mask,
stated “[defendant] has removed his mask.”
7
not only Kiratirai’s testimony indicating he could not precisely
recall the appearance of his assailant but also his admission that
he was afraid to testify at all. (See People v. Valdez (2012) 55
Cal.4th 82, 135 [“‘“Evidence that a witness is afraid to testify or
fears retaliation for testifying is relevant to the credibility of that
witness”’”].) The jury could have appropriately determined it
would credit Kiratirai’s identification while ascribing his
reticence or expressed uncertainty to fear of retaliation.
Significantly, Kiratirai’s identification was also bolstered
by the surveillance video evidence. While that footage (or still
photos created from the video footage) is insufficiently clear to
precisely identify facial features or the intricacy of tattoos, it does
permit a comparison of the size and location of the robber’s
tattoos and the robber’s hairline to defendant’s—and there are
similarities in all respects. Defendant complains that Detective
Wolfe did not make such a comparison on the witness stand, but
he did not need to; the jury could properly make the comparison
itself.3 (People v. Leon (2015) 61 Cal.4th 569, 601 (Leon)
[“[B]ecause the surveillance video was played for the jury, jurors
could make up their own minds about whether the person shown
was [the] defendant”].) Defendant’s contention that the jury
could not have identified him as the person in the surveillance
video because he was masked throughout the trial ignores the
facts that defendant lowered his mask during Kiratirai’s
3
Defendant also calls attention to the prosecution’s mention
of “teeth marks” when discussing one of the tattoo photos and
exhorting the jury to examine it closely even though the photo
was not clear. Defendant does not explain why this reference is
significant, and there was no objection to the reference in any
event.
8
testimony and the jury viewed photos of defendant taken just one
week after the California Market robbery.
In addition, defendant’s identity as the California Market
robber was further supported by similarities between that crime
and the 7-Eleven robbery—for which there is strong evidence he
was the perpetrator. (See, e.g., People v. Scott (2011) 52 Cal.4th
452, 473 [“The inference of identity need not depend on one or
more unique or nearly unique common features; features of
substantial but lesser distinctiveness may yield a distinctive
combination when considered together”]; People v. Miller (1990)
50 Cal.3d 954, 989 [“the likelihood of a particular group of
geographically proximate crimes being unrelated diminishes as
those crimes are found to share more and more common
characteristics”].) The 7-Eleven robbery occurred two days after
the California Market robbery, the stores are on the same street,
and both robberies involved an apparently unarmed, undisguised
person familiar to store personnel from previous incidents
ignoring commands to leave, leaping over the counter, and
stealing multiple packs of cigarettes.4
4
Defendant reasonably contends that jumping a counter and
stealing cigarettes are not sufficiently unusual in convenience
store robberies to support identification (see Leon, supra, 61
Cal.4th at 598 [“the greatest similarity is required to prove
identity”]), but these were not the only features the two robberies
shared, as just enumerated. Defendant also suggests we should
only consider those features pointed out by the prosecution in its
closing argument, but that runs contrary to settled law. (People
v. Perez (1992) 2 Cal.4th 1117, 1126 [“It is elementary . . . that
the prosecutor’s argument is not evidence and the theories
suggested are not the exclusive theories that may be considered
by the jury”].)
9
Especially when considered collectively, Kiratirai’s
testimony, the video evidence, and the similarities between the
crimes are substantial evidence supporting the jury’s
determination that defendant committed the California Market
robbery.
B. Any Instructional Error Was Harmless
The trial court gave the jury an eyewitness testimony
instruction patterned on CALCRIM No. 315. That instruction
told the jury it should consider several questions in assessing
whether an eyewitness gave truthful and accurate testimony,
including, “How certain was the witness when he or she made an
identification?” Defendant’s trial counsel expressly approved of
giving the jury this instruction (small wonder, given Kiratirai’s
expressed uncertainty).
After the jury’s verdict, our Supreme Court decided
Lemcke, supra, 11 Cal.5th 644. In that case, the court
acknowledged its precedent had “repeatedly endorsed the use of
instructions that direct the jury to consider an eyewitness’s level
of certainty when evaluating identification evidence.” (Id. at
655.) But the court emphasized “there is now near unanimity in
the empirical research that ‘eyewitness confidence is generally an
unreliable indicator of accuracy.’ [Citations].” (Id. at 647.) The
Lemcke Court expressed concern that CALCRIM No. 315 “does
nothing to disabuse jurors of the common misconception” that “a
certain identification is more likely to be accurate.” (Id. at 666.)
Despite the “risk that the . . . version of [CALCRIM No. 315
at issue] w[ould] prompt jurors to infer that an eyewitness’s
certainty in an identification is generally a reliable indicator of
accuracy,” Lemcke did not hold a defendant’s due process rights
10
are violated whenever the certainty factor is included in an
eyewitness identification instruction. (Lemcke, supra, 11 Cal.5th
at 669.) To the contrary, the court determined on the facts
presented that “listing the witness’s level of certainty as 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
661, italics added.) Though the Lemcke court did not find
instructional error on this ground, the court did opt to exercise its
“supervisory powers” to “direct . . . trial courts to omit the
certainty factor from CALCRIM No. 315 until the Judicial
Council has the opportunity to consider how the language might
be better worded to minimize juror confusion on this point.
[Citation.]”5 (Id. at 669.)
Defendant’s trial was held prior to our Supreme Court’s
supervisory pronouncement in Lemcke, but he contends inclusion
of CALCRIM No. 315’s certainty factor in the jury instructions in
his case was error because “the instruction could not be used if
the trial were held today.” This argument lacks merit: If use of
the certainty factor prior to Lemcke were grounds for reversal,
the Supreme Court would not have affirmed the judgment in
Lemcke. (Lemcke, supra, 11 Cal.5th at 661 [“While an enhanced
or modified version of the certainty instruction might well be
advisable . . . , that alone does not establish a due process
violation”].)
5
The Judicial Council revised CALCRIM No. 315 in March
2022. The certainty factor now includes a warning about the
limitations of this consideration and several optional sub-factors.
11
Furthermore, even if it was error to instruct the jury with
CALCRIM No. 315 as then formulated, the error was harmless
under any standard of assessing prejudice. As defendant
concedes, the 7-Eleven witnesses’ confident identification of
defendant was “supported by the 7-Eleven videos.” And as
Lemcke explains, the certainty factor would not have misled
jurors to defendant’s detriment with respect to Kiratirai’s
qualified identification. (Lemcke, supra, 11 Cal.5th at 669, fn. 19
[“The misleading effect we are concerned with here—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”]; accord People v. Sanchez (2016) 63
Cal.4th 411, 462.)
C. The Use of Face Masks Did Not Violate the
Confrontation Clause
Defendant’s trial was held in November 2020 during the
ongoing COVID-19 pandemic. A general order issued by the
presiding judge of the Los Angeles County Superior Court on
October 13, 2020,6 provided that “[a]ll persons entering any
courthouse or courtroom shall wear a face mask over their nose
and mouth at all times within public areas of the courthouse or
courtroom” and that “[f]ace shields may not be used without a
face mask except as required by a physician.” The general order
cited “federal, state and local public health guidelines,” including
6
This court granted defendant’s request for judicial notice of
general order 2020-GEN-016-02. (Evid. Code, §§ 452, subd. (d),
459, subd. (a).)
12
an order by the local public health authority requiring all persons
to wear “‘a cloth face covering whenever there is or can be contact
with others who are non-household members in both public and
private places . . . .’”
Consistent with the general order, the trial court required
all witnesses to wear a face mask unless an exemption applied.
Defendant, joined by the prosecution, requested that witnesses be
allowed to wear clear face shields in lieu of masks so the jury
could “better assess the witness[es]’ body language, facial
expressions, and . . . credibility . . . .” The trial court cited the
general order in denying the request, emphasizing masks were
required “notwithstanding the fact that we . . . have plexiglass
surrounding the witness stand” and indicating that jurors would
be “able to evaluate a witness’[s] credibility” because they could
“still see the upper portion of the witness’[s] face.”7
Defendant contends the trial court’s enforcement of the
masking order violated his constitutional right to confrontation.
“The Confrontation Clause of the Sixth Amendment, made
applicable to the States through the Fourteenth Amendment,
provides: ‘In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.’”
(Maryland v. Craig (1990) 497 U.S. 836, 844 (Craig).) This right
“includes not only a ‘personal examination’” of witnesses, “but
7
The trial court also denied defendant’s motion for a new
trial based on the mask requirement. The trial court again
emphasized that the presiding judge “had made clear that . . . a
facial shield was insufficient to protect the public” and “[t]he
court and the jury were able to assess the credibility of the
witnesses, notwithstanding the fact that they had facial masks
on.”
13
also ‘(1) insures that the witness will give his statements under
oath—thus impressing him with the seriousness of the matter
and guarding against the lie by the possibility of a penalty for
perjury; (2) forces the witness to submit to cross-examination, the
“greatest legal engine ever invented for the discovery of truth”;
[and] (3) permits the jury that is to decide the defendant’s fate to
observe the demeanor of the witness in making his statement,
thus aiding the jury in assessing his credibility.’ [Citation.]” (Id.
at 845-846.)
“Although the constitutional right of confrontation is
important, it is not absolute.” (People v. Wilson (2021) 11 Cal.5th
259, 290.) Rather, it “‘must occasionally give way to
considerations of public policy and the necessities of the case.’”
(Craig, supra, 497 U.S. at 848, quoting Mattox v. United States
(1895) 156 U.S. 237, 243.) This “does not, of course, mean that it
may easily be dispensed with,” and the high court has
emphasized “that a defendant’s right to confront accusatory
witnesses may be satisfied absent a physical, face-to-face
confrontation at trial only where denial of such confrontation is
necessary to further an important public policy and only where
the reliability of the testimony is otherwise assured.” (Id. at 850.)
California courts have published several opinions
addressing the Confrontation Clause implications of witnesses
wearing opaque face masks while testifying. The opinions are
unanimous in holding that masking requirements for witnesses
in trials held around the time of defendant’s trial were necessary
to protect those in the courtroom and the broader community.
(People v. Edwards (2022) 76 Cal.App.5th 523, 525-526
(Edwards) [trial held in October and November 2020]; People v.
Lopez (2022) 75 Cal.App.5th 227, 230, 233 (Lopez) [trial held in
14
September 2020]; People v. Alvarez (2022) 75 Cal.App.5th 28, 36
(Alvarez) [“there is no doubt that requiring people to wear masks
covering the mouth and the lower part of the nose while
testifying in the courtroom during the COVID-19 pandemic
served an important state interest in protecting the public from a
contagious, and too often, lethal, disease”]; id. at 38, fn. 7 [“nearly
every state and federal court to consider the issue during our
current COVID-19 pandemic has found no confrontation violation
because a witness was wearing a mask”].) The opinions are
likewise unanimous in holding that masking the lower part of the
face does not materially undermine the jury’s ability to assess
credibility. (Edwards, supra, at 527; Lopez, supra, at 234 [“The
jurors could see the witnesses’ eyes, hear the tone of their voices,
and assess their overall body language”]; Alvarez, supra, at 38
[“Although face masks covered the witnesses’ mouths and the
lower part of their noses, significant aspects of their appearance,
including the eyes, tops of the cheeks, and the body, were readily
observable as was posture, tone of voice, cadence and numerous
other aspects of demeanor”].) The result reached in these
opinions is, in our view, correct, and we reach the same
conclusion here.
Defendant nonetheless contends the trial court should have
disregarded the general order because, in combination with other
COVID-19 policies and infrastructure,8 “the use of a clear face
8
The trial court told the jury about various safety measures
the court had taken, including “requiring all persons inside the
courthouse to wear a facial mask, to maintain social distancing of
at least six feet inside the courtroom and all public areas,”
installing “plexiglass at various points in the courtroom to reduce
the spread of droplets,” providing hand sanitizer, “replac[ing] air
15
shield was a reasonable alternative to the non-clear face masks”
for testifying witnesses. This specific argument has been rejected
by precedent too, and we reject it for the same reasons.
(Edwards, supra, 76 Cal.App.5th at 527 [argument that the trial
court “could have ordered ‘clear masks’ or use of ‘a face shield
with a cloth drape along the bottom’” was not supported by
“evidence an objective authority appraised these alternatives to
be effective in combatting the disease’s spread”].)
filters throughout the courthouse,” and performing “enhanced
cleaning twice a day.”
16
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
17