People v. Peralez CA6 ( 2020 )

Filed 11/3/20 P. v. Peralez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H046144
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1524108)
v.
DANNY GARCIA PERALEZ,
Defendant and Appellant.
A jury convicted appellant Danny Garcia Peralez of first degree robbery while
acting in concert with others, attempted murder, three first degree burglaries, attempted
burglary, and various gang and firearm sentencing enhancements. In addition, the trial
court found true a prior serious felony conviction allegation and a prior strike conviction
allegation. The trial court sentenced Peralez consecutively to an indeterminate term of 30
years to life in prison plus a five-year sentence enhancement for the prior serious felony
and a determinate term of 29 years and eight months plus the five-year prior serious
felony enhancement.
On appeal, Peralez raises four claims. He contends a pretrial identification
procedure was unnecessarily suggestive and tainted the eyewitness’s identification of
him, the trial evidence was insufficient to support the jury’s findings on the gang
enhancements, the jury instruction on eyewitness identification (CALCRIM No. 315) was
flawed because it permitted consideration of the eyewitness’s level of certainty, and the
matter should be remanded so the trial court may exercise its newly conferred sentencing
discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) on the prior serious felony
enhancement.
For the reasons explained below, we reverse the judgment and remand the case to
allow the trial court to exercise its discretion whether to strike the prior serious felony
enhancement under Penal Code sections 667, subdivision (a), and 1385. We reject
Peralez’s other claims of error.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
On December 1, 2016, the Santa Clara County District Attorney filed an
information charging Peralez with six counts related to four incidents that occurred on
October 22, 2015.1 The information alleged that Peralez committed first degree robbery
while acting in concert with other persons (Pen. Code, §§ 211, 213 subd. (a)(1)(A);2
count 1), attempted murder of Albert S.3 (§§ 187, 664, subd. (a); count 2), three, first
degree burglaries (§§ 459, 460, subd. (a); counts 3, 4 & 6), and attempted first degree
burglary (§§ 459, 460 subd. (a), 664 subd. (a); count 5). In addition, the information
stated a gang sentencing enhancement allegation in each count. (§ 186.22, subd. (b)(1) &
(4).) The first three counts each included a firearm sentencing enhancement allegation
(§§ 12022.53, subds. (b), (c), (d) & (e) [counts 1 & 2], 12022.5, subd. (a) [count 3]), and
counts 3 and 5 each included an allegation that a person not an accomplice was present in
the residence during the crime (hereafter “presence” allegation). (§ 667.5, subd. (c)(21).)
The information further alleged that Peralez had a prior serious felony conviction (§667,
1
Unless otherwise indicated, all dates occurred in 2015.
2
Unspecified statutory references are to the Penal Code.
3
To protect the privacy of the victims, we refer to them initially by their first
name and the first initial of their last name. At times thereafter, we refer to the victims by
their first names only. (Cal. Rules of Court, rule 8.90(b)(4).)
2
subd. (a)) for possession of a firearm by a felon (§ 12021), a prior strike conviction
(§§ 667, subd. (b)–(i), 1170.12), and two prior felony convictions for which he had
served prison terms (hereafter “prison prior” allegations) (§ 667.5, subd. (b)).
At trial, the jury found Peralez guilty on all six counts and found the attendant
gang, firearm, and presence allegations true. After the verdict, upon the prosecutor’s
motion the trial court struck and dismissed the two prison prior allegations. The trial
court then found true the prior serious felony conviction allegation and the prior strike
conviction allegation.
On July 25, 2018, the trial court sentenced Peralez on count 1 to an indeterminate
prison term of 30 years to life plus a consecutive five-year enhancement under section
667, subdivision (a), and, on counts 2 through 6, to a consecutive determinate term of 29
years and eight months, in aggregate. The determinate term included a five-year
enhancement under section 667, subdivision (a).
B. Trial Evidence
1. Incidents on October 22
The prosecution presented evidence of four crimes that occurred on the morning of
October 22, within a few miles of each other in San Jose.
Ellen N. left her home on Crocus Drive about 7:00 a.m. When she returned home
at 2:00 p.m., she discovered a large stone on her living room floor and a broken window
near her kitchen. She called the police and looked through the house. All three
bedrooms had been ransacked. Her laptop, several brand-name purses, money, gold,
watches, brand-name belts, expensive shoes, an iPhone and iPad, and a game belonging
to her daughter were missing.
Kathy W. left her house on Thistle Drive around 9:45 a.m. She checked the doors
to make sure they were locked when she left. Her spouse, Wayne W., had left the house
before her that morning. When Wayne returned home between 10:30 and 11:30 a.m., he
found that a doorway to the house had been damaged and the door left open. The
3
bedrooms and an office in the house had been ransacked. Jewelry, coins, a .22-caliber
Ruger target pistol, and its loaded magazine had been taken. Wayne testified the gun
ejected expended casings to the right when fired.
At the time of the burglary on Thistle Drive, Wayne had video cameras that
recorded the happenings around his house. Police collected the videos, and the videos
and still images captured from them were admitted as evidence at trial. The videos and
images depict Peralez and an individual later identified as Jacob Salinas at the house.
Salinas appears first around 9:50 a.m., followed by Peralez at 10:00 a.m. Salinas is
wearing a black t-shirt, blue jeans, and dark-rimmed glasses. Peralez is wearing a dark
hooded sweatshirt and long, dark shorts. They leave the house together at 10:13 a.m.
The video shows Peralez walking out of the house with a gun in his hand and a blue
Honda Accord present on the street.
Catherine S. lived at a home on Carlotta Court. Around 10:30 a.m., someone rang
her doorbell. A few minutes later Catherine opened the door but did not see anyone
outside. Around the same time, one of Catherine’s neighbors heard three loud bangs.4
The neighbor looked into Catherine’s backyard and saw a man standing near the glass
patio door. According to the neighbor, the man was Hispanic, about 19 years old, 6 feet
tall, and 190 pounds. He had short dark hair and was wearing black rimmed glasses and
black clothing. The man bobbed his head up and down and the neighbor heard another
person say loudly, “ ‘Let’s go. Let’s go.’ ” The man then climbed over the backyard
fence, walked toward a gray or blue Honda Accord, and got in through the rear passenger
door. The car sped away very quickly with three people inside. The driver—who had
earlier walked toward the front door of Catherine’s house—was a Hispanic man with
long brown hair, in his late 20s, wearing light colored clothing and a dark hoodie. The
person in the front passenger seat was leaning back and the neighbor could not describe
4
Catherine did not hear any noises or banging outside her house after she heard
the doorbell.
4
him at trial, although the neighbor had previously told police that person was a Hispanic
male.
Some of Catherine’s neighbors stopped her as she left her home around 10:40 a.m.
They told her that someone had tried to break into her house. They pointed toward a car
that was driving away. Catherine called the police. Catherine and police observed some
scuff marks and scratches on the glass patio door. In addition, loose bricks were lying on
the ground nearby.
Around 11:20 a.m., Albert S. arrived at his house on Greenpark Way and noticed
someone exiting through a front gate. Albert approached the man and said the house was
his. The man said he was there to visit a friend and wanted to go get him. The man
turned around and went inside the house. The man was Hispanic, about 20 years old, 5
feet 8 inches tall, and slim. He had slicked back hair and wore a necklace, baggy black
t-shirt, jeans, glasses, and possibly gloves.5
Albert followed the man toward the house and saw through the front door that his
family’s belongings were scattered “everywhere.” Albert ran inside the entryway and
grabbed the man from behind. Albert screamed out for his mother thinking she might be
home.6 A second man, whom Albert identified at trial as Peralez, came running out of a
hallway with his hand pointed up, telling Albert to “ ‘back the fuck up.’ ” Peralez was
about 10 feet away when Albert first saw him, and he “came right up to” Albert. Albert
stared at Peralez’s eyes and hand; he “was just locked in with the eyes.” Albert described
the second man in his trial testimony as about 5 feet 9 or 10 inches tall, over 200 pounds,
5
While at the hospital later on the day of the crime, Albert described this man to
police as Hispanic, in his twenties, 5 feet 8 inches tall, 160 pounds, with black combed-
back hair and wearing either silver or white colored oval-framed prescription glasses, a
black t-shirt, and blue pants. In addition, Albert said he could recognize this man if he
saw him again.
6
Albert’s mother had left the house that morning around 10:30 a.m. The doors
were locked when she left.
5
and Hispanic. He wore a black t-shirt and a baseball cap turned backwards and had long
hair that was tied back.7
As Peralez approached him, Albert backed up, shoved the first man into Peralez,
and yelled at them to get out of the house. Peralez ran out. The first man punched Albert
in the face and Albert kicked him four or five times. The altercation lasted “maybe 30
seconds.” The first man ran off limping. Albert ran after him and noticed a light blue
Honda Accord in the middle of the street. Albert saw the first man crawling toward the
car and Peralez standing by the front passenger seat, partially in the car with the door
open. A third man wearing a white shirt was in the driver’s seat.
Albert ran to the front of the car and then toward the back to check the license
plate. As Albert was about to call 911, the first man—who was then in front of the car—
yelled to Peralez to “ ‘[s]hoot him.’ ” Albert looked up and saw Peralez about six feet
away with his hand out. Peralez was holding something metallic that looked square with
a round hole in it; Albert believed it was a gun.8 Albert heard a bang, saw smoke around
Peralez’s hand, and felt pain in his right shoulder. The car drove off. Albert called 911
and went back inside the house.
The police received a report of shots fired about 11:40 a.m., and officers arrived at
Albert’s house a few minutes later. Albert came out covered in blood. Emergency
medical technicians transported Albert to the hospital, where he was treated for a small
gunshot wound through his shoulder and released after about four hours.
7
While at the hospital later on the day of the crime, Albert described the second
man to police as Hispanic, in his twenties, 5 feet 11 inches tall, 200 pounds, and wearing
a black t-shirt and blue pants. In addition, Albert said he could not remember the second
man’s face “ ‘too well’ ” and thought “ ‘maybe’ ” he could recognize the man but it was
“ ‘50-50.’ ” Albert also said he did not see any facial tattoos. Peralez, however, had
tattoos on his face, including the number 14 and a Huelga bird adjacent to and below his
eyes.
8
In earlier statements to police, Albert said he saw both perpetrators near their
getaway car but did not know who yelled “ ‘[s]hoot him.’ ” Albert also previously told
police he did not see a gun or who shot him.
6
Police searched the crime scene on Greenpark Way but did not find any expended
cartridge casings, and no gun was recovered during the investigation.9 Albert’s kitchen
window had been shattered by a brick, a large safe had been tipped over and moved, and
five bedrooms were in disarray. A second safe had been pried open and a designer wallet
that had been stored in it was missing.
2. Arrest of Peralez
Around 3:55 p.m. that afternoon, a police officer attempted to stop Peralez in
Salinas, California. Peralez was driving alone in a green car. He fled from the officer
and led police on a pursuit over several miles. He drove at high speeds, weaved in and
out of traffic, ran red lights, and ultimately crashed into some parked cars. Peralez ran
from his wrecked car but was stopped by a police canine and taken into custody. He was
wearing a black t-shirt.
During the pursuit, Peralez threw from his car what police officers believed was a
cellphone. An officer searched the area and found a cellphone. Police downloaded data
from the phone. The cellphone contained a photo of a firearm being held by a hand. The
tattooed wrist in the photo resembled Peralez’s. According to the cellphone data
associated with the photo, the photo had been taken at 1:19 p.m. on October 22 (the day
of the crimes), along Highway 101 between Gilroy and Salinas. Wayne W. identified the
gun in the photo as looking like the one taken from his house. In addition, the
cellphone’s contacts included Peralez’s confederate Jacob Salinas.
When police searched the inside of Peralez’s car they found an iPhone and
receipts that had been taken from Ellen N.’s home earlier that day.
9
A police officer explained the gun used to shoot Albert might have been a
revolver (i.e., a type of gun that does not eject expended cartridge casings when fired) or
a semi-automatic weapon that ejected the expended cartridge casing into the getaway car.
7
3. Identification of Peralez by Albert S.
Five days later, on October 27, San Jose Police Officer George Constantin
distributed to the press still images and a portion of the surveillance video from the
Thistle Drive burglary. Thereafter, an unidentified police officer called Albert S. and
asked if he had seen the surveillance video from a neighbor’s house and whether the
people in the video were the ones who robbed his house. Albert looked for the video on
the Internet and viewed it. He immediately recognized the people in the video as
“ ‘[a]bsolutely’ ” the men he had encountered on October 22.
Nine days later, on November 5, police showed Albert two six-person photo
lineups. The police officer who showed Albert the lineups told him to “just relax,” there
was “ ‘[n]o pressure,’ ” and the perpetrators might or might not be depicted in the
photographs.
From one lineup, Albert picked out Peralez as the man who shot him. When
viewing this lineup Albert said, “ ‘My heart races on this one. His eyes look the same.
This is the guy at my house. The guy who shot me. He was [the] last guy I looked at
before I heard the pop.’ ” Albert also told the officer who showed him the lineup that he
did not see a gun and “ ‘assumed’ ” Peralez was the shooter because Peralez was the last
person he saw before he heard the “pop.”
From the other lineup, Albert selected Salinas as the first man he encountered on
October 22 (i.e., the person who “ ‘came out of [Albert’s] house’ ” and with whom Albert
“ ‘fought’ ”).
8
4. Gang Evidence
Detective Jesse Pinon, a gang intelligence deputy with the Monterey County
Sheriff’s Office, was qualified as a street gang expert with particular expertise in the
Salinas East Market gang (SEM).10
SEM is a “subset” of the Norteño gang. SEM formed in the mid-1970’s in Salinas
as a branch of the Nuestra Familia prison gang. SEM members were street soldiers who
committed crimes, obtained money for the gang, and funneled the money to the Nuestra
Familia. Because SEM is a Norteño gang, their chief rivals are any Sureño gangs.
Sureños also derive from a prison gang, the Mexican Mafia, which is the rival of the
Nuestra Familia. There are several Norteño subsets in Salinas that also are affiliated
loosely with Nuestra Familia.
To become a member of SEM, a person must either be “jumped-in” (i.e., endure
an attack by gang members) or “crime-in” (i.e., commit criminal acts at the behest or for
the benefit of the gang, which is also known as “ ‘putting in work’ ”). Older members of
the gang recruit new members from the areas in which they live. Gang members promote
the gang and their reputations through their clothing, tattoos, money, violence, drug
dealing, theft, and other illicit activity.
SEM members, like other Norteños, identify with and use the number 14, the letter
N, the color red, tattoos, and certain sports team logos as gang identifiers. SEM
members, in particular, also use as signs and symbols of the gang the letters M and SEM,
the number 500 (reflecting the origins of the gang on the 500 block of East Market Street
in Salinas), sports logos that include the letter M (i.e., the logos of the Milwaukee
Brewers and Minnesota Twins), the words “ ‘East Side,’ ” and the Huelga bird. In
10
Although the prosecution presented much of its gang evidence through
Detective Pinon, other witnesses also provided evidence about SEM and its members,
including Peralez.
9
addition, SEM members display hand signs that represent the numbers four and 14 and
the letters M and E.
Gang members obtain tattoos of their gang’s signs and symbols to show their
enduring loyalty to the gang, promote it for recruitment purposes, and intimidate other
people. Peralez had many SEM and Norteño gang-related tattoos all over his body,
including on his face, arms, and hands. If a person had a SEM-related tattoo but was not
actually a member of SEM, he would be assaulted by SEM members.
Loyalty is extremely important to gangs. Gang members are expected to back
each other up when committing crimes together or upon attack by a rival, to keep secrets,
and not to snitch. Any disloyal SEM member is subject to discipline, including by
violent attack or death. If a SEM member were to commit a crime for his own benefit
(rather than for the gang’s), his action would create “issues” with regard to the gang that
he “would have to answer to.”
Violence is important to SEM. Violence is used to show that SEM members will
commit crimes, make money for the gang by any means necessary, bolster the gang’s
reputation, control their own members, retaliate against those who provide evidence
against the gang, terrify the community to prevent reports of crime to law enforcement,
and intimidate rival gangs. In addition, by “putting in work,” gang members bolster their
reputations, earn respect within the gang, support the gang, recruit new members, and
control the gang’s territory. Members also gain respect by educating others about the
gang and helping them to get promoted within the gang’s ranks.
SEM marks its territory by tagging it with graffiti. The larger the gang’s turf, the
more crimes the gang can commit and the more revenue it can generate from within its
territory. SEM members use violence to keep rival gang members out of their territory,
including those who try to sell drugs or commit crimes within SEM’s turf. In October
2015 (i.e., when the charged crimes occurred), SEM claimed several streets in Salinas as
10
its turf, but its members were located throughout Salinas and Monterey County and
traveled to San Jose to party.
In October 2015, SEM had at least 50 members (including several high-ranking
members), and it was likely that not all SEM members knew each other. The gang had a
hierarchical, formal, and written structure that fell under the Nuestra Familia. Members
are given copies of the gang’s constitution, which sets out its rules and goals, and they are
taught about the gang’s structure and the responsibilities of membership.
Detective Pinon opined that the primary activities of SEM include robbery, drug
dealing, murder, attempted murder, assault with a deadly weapon, illegal possession of
firearms, and residential burglary. Detective Pinon based his opinion on his personal
experience investigating gang-related offenses, information he had received directly from
knowledgeable people, and the law enforcement briefings and classes he had attended.
Through Detective Pinon and other witnesses, the prosecution presented evidence
of four predicate offenses to establish a pattern of criminal gang activity by SEM. In
particular: (1) Peralez was convicted of possession of a firearm with a gang
enhancement, committed on June 22, 2010; (2) SEM member Jesse Diaz was convicted
of murder and attempted murder with a gang enhancement, and SEM member Ricardo
Villanueva was convicted of attempted murder with a gang enhancement, committed on
October 1, 2010; (3) two SEM members, Juan Boyzo and William Martinez, were
convicted of robbery with a gang enhancement, committed on July 20, 2013; and (4) two
SEM members, Miguel Martinez and Sean Coffer, were convicted of armed robbery and
misdemeanor gang participation, committed on April 4, 2014.
Detective Pinon opined that Peralez is a Norteño gang member and specifically a
member of the SEM subset. Pinon based his opinion on the current charges, prior
investigations of Peralez, prior statements Peralez had made to him, law enforcement
documentation of Peralez’s gang contacts, Peralez’s many SEM-related tattoos, and
11
photographs of Peralez displaying a SEM hand sign and wearing a red hooded sweatshirt
and a red and black hat in the company of other people displaying SEM hand signs.
Detective Pinon opined that in October 2015, Jacob Salinas was a “Salinas gang
member associate, SEM associate.” An associate is someone who “is trying to be part of
the gang, working to get that approval into the gang” or “crime-in.” Associates hang
around with the gang on a constant basis and are “pretty much one step below a gang
member.” Pinon based his opinion on photos of Salinas on social media, a probation
officer’s testimony that Salinas affiliated with the northern gang and had gang-related
probation conditions, and the current charges. On social media, Salinas presented a SEM
hand sign, claimed the color red and Salinas’s 831 area code, and displayed a graphic that
included the word “Norte” (which is short for Norteño), a red bandana pattern over the
outline of a map of California, and “XIV” over a Huelga bird. In addition, Salinas lived
in SEM territory.
The prosecutor posed three hypotheticals to Detective Pinon based on the facts of
the charged crimes. The hypotheticals focused on three perpetrators—one SEM member,
one SEM associate, and an unknown person—committing residential burglaries, shooting
a homeowner who interrupted a burglary, and committing the crimes in a county not the
one in which the perpetrators live. The prosecutor asked Pinon whether the crimes were
committed for the benefit of or in association with a criminal street gang and with
specific intent to further, promote, and assist in the criminal conduct of gang members.
Pinon said they were.
Peralez did not present any evidence at trial.
II. DISCUSSION
Peralez asserts four claims of error. He contends that the photo lineup conducted
after Albert viewed the surveillance video was unnecessarily suggestive and rendered his
later identifications of Peralez unreliable. He claims the evidence was insufficient to
support the jury’s findings on the gang sentence enhancements. He asserts the portion of
12
CALCRIM No. 315 that allowed the jurors to consider an eyewitness’s level of certainty
is flawed. Finally, he contends the case should be remanded so the trial court can
exercise its sentencing discretion on the prior serious felony enhancements under Senate
Bill No. 1393. (Stats. 2018, ch. 1013, §§ 1, 2.) We address Peralez’s claims in turn. We
also note errors within the abstracts of judgment not raised by either party.
A. Eyewitness Identification Evidence
Midtrial, Peralez moved the trial court to strike Albert’s testimony about the
lineup and in-court identification of Peralez, claiming the identifications were the product
of an unduly suggestive identification procedure. Peralez asserted that the defense did
not know prior to Albert’s testimony that he had watched the Thistle Drive surveillance
video at the suggestion of the police before viewing the lineup. Peralez argued that
Albert’s exposure to the video rendered the lineup unduly suggestive and the
identifications of Peralez unreliable.
In denying Peralez’s motion, although the officers who testified at trial denied
they had spoken with Albert about the surveillance video, the trial court assumed police
suggested that Albert watch the video. Nevertheless, the court found the video not
unduly suggestive. The court also concluded that Peralez’s involvement in the charged
offenses was sufficiently corroborated and Albert’s description of the crime and
identification of Peralez were based on Albert’s independent recollection, not his review
of the video.
On appeal, Peralez maintains that his constitutional right to due process was
violated by the admission of identification evidence that was unreliable and resulted from
an unnecessarily suggestive photo lineup administered after Albert viewed the
surveillance video.
1. Legal Principles
Due process protections serve as a “check on the admission of eyewitness
identification . . . when the police have arranged suggestive circumstances leading the
13
witness to identify a particular person as the perpetrator of a crime.” (Perry v. New
Hampshire (2012) 565 U.S. 228, 232.) “ ‘ “In deciding whether an extrajudicial
identification is so unreliable as to violate a defendant’s right to due process, the court
must ascertain (1) ‘whether the identification procedure was unduly suggestive and
unnecessary,’ and, if so, (2) whether the identification was nevertheless reliable under the
totality of the circumstances.” ’ ” (People v. Gonzalez (2006) 38 Cal.4th 932, 942
(Gonzalez).) When making this determination, the court takes “into account such factors
as the opportunity of the witness to view the suspect at the time of the offense, the
witness’s degree of attention at the time of the offense, the accuracy of his or her prior
description of the suspect, the level of certainty demonstrated at the time of the
identification, and the lapse of time between the offense and the identification.” (People
v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham) [citing, among other cases,
Manson v. Brathwaite (1977) 432 U.S. 98, 104–107, 114 (Manson) and Neil v. Biggers
(1972) 409 U.S. 188, 199–200 (Neil)].)
The defendant bears the burden of demonstrating the existence of an unduly
suggestive and unreliable identification procedure. (People v. Avila (2009) 46 Cal.4th
680, 700; Gonzalez, supra, 38 Cal.4th at p. 942.) “Only if the challenged identification
procedure is unnecessarily suggestive is it necessary to determine the reliability of the
resulting identification.” (People v. Yeoman (2003) 31 Cal.4th 93, 125.) “[T]here must
be a ‘substantial likelihood of irreparable misidentification’ under the ‘ “ ‘totality of the
circumstances’ ” ’ to warrant reversal of a conviction on this ground.” (Cunningham,
supra, 25 Cal.4th at p. 990; see also People v. Ratliff (1986) 41 Cal.3d 675, 689 [“While
a defendant may attack any lineup, photographic or otherwise, as unduly suggestive
[citation], the taint of an unlawful confrontation or lineup may be dispelled if the People
show by clear and convincing evidence that the identification of the defendant had an
independent origin.”]; People v. Yokely (2010) 183 Cal.App.4th 1264, 1272.)
14
Appellate courts review deferentially the trial court’s findings of historical fact
and independently the trial court’s ruling on whether, under those facts, a pretrial
identification procedure was unduly suggestive and the identification itself was
unreliable. (Gonzalez, supra, 38 Cal.4th at p. 943; People v. Kennedy (2005) 36 Cal.4th
595, 609 (Kennedy), disapproved on other grounds in People v. Williams (2010) 49
Cal.4th 405, 459; People v. Chavez (2018) 22 Cal.App.5th 663, 675.) A reviewing court
need not decide whether the identification procedure was unduly suggestive if the pretrial
identification was “ ‘nevertheless reliable under the totality of the circumstances.’ ” (See
People v. Clark (2016) 63 Cal.4th 522, 556 (Clark).)
2. Analysis
Peralez argues that Albert’s identification of him was the “product of suggestion”
created by Albert’s review of the surveillance video on the recommendation of police.
He asserts further that the facts and circumstances of the crime and Albert’s identification
support the conclusion that the identification was unreliable. Peralez notes that, on the
day of the crime, Albert told police his ability to identify the second man he encountered
during the incident was a “ ‘50/50’ ” proposition. Peralez maintains that Albert provided
only a “very generic description” of the second man to police, did not mention any facial
tattoos, and told the 911 dispatcher that the shooter was “ ‘slim.’ ” Peralez claims further
that Albert’s observation of the second man was brief and occurred under extreme stress
while Albert was focused on other things. Peralez argues that Albert’s certainty and
asserted recognition of Peralez based on his eyes are of limited import because Albert
reviewed the surveillance video. Peralez finally claims the admission of Albert’s
unreliable identification was not harmless beyond a reasonable doubt, as required by
Chapman v. California (1967) 386 U.S. 18, 23–24 (Chapman).
For the reasons explained below, we are not persuaded that a due process violation
occurred here. Upon review of the surveillance video and other relevant trial exhibits,
and based on the totality of the circumstances (see Neil, supra, 409 U.S. at pp. 199–200;
15
Cunningham, supra, 25 Cal.4th at p. 989), we conclude that Albert’s identifications of
Peralez at the lineup and in court were reliable. Accordingly, we need not address
Peralez’s separate contention that the identification procedure employed in this case was
unduly suggestive. (See Clark, supra, 63 Cal.4th at p. 557.)
Although Albert’s interaction with the second perpetrator during the crime was
relatively brief, Albert had ample opportunity to observe him. Albert stared at the man’s
eyes and hand as the man approached from 10 feet away. The man came up close to
Albert in the entryway of the house. A short time later, Albert saw the man again on the
street near the getaway car. Within a few hours of this interaction, Albert described the
second perpetrator to police. That description was consistent with Peralez’s ethnicity,
age, build, and clothing.11 Although Albert’s description did not include Peralez’s facial
tattoos, we are not convinced that his otherwise accurate description of Peralez should be
discounted. The description is not overly generic. (See Neil, supra, 409 U.S. at p. 200
[characterizing as “more than ordinarily thorough” a victim’s description that “included
the assailant’s approximate age, height, weight, complexion, skin texture, build, and
voice”]; Manson, supra, 432 U.S. at p. 115 [relying on a description that included race,
height, build, hair color and style, a facial feature, and clothing].)
Further, Peralez appears to overstate the record when he asserts that Albert
initially (and inconsistently) “identified the ‘slim’ person, not the heftier Peralez, as the
shooter to the 911 dispatcher” on October 22. Based on our review of the 911 transcript,
it is, at most, unclear which perpetrator Albert described when he responded to the
dispatcher’s question, “What did he look like, what race was he?” (Italics added.)
Shortly before this question was asked, Albert had mentioned both perpetrators to the
dispatcher and said, “They took off, they got in a car, I ran out there, and he told his
11
Peralez was twenty-four years old at the time of the crime. He was wearing a
black t-shirt when apprehended in Salinas a few hours after the crime. In addition,
according to the trial court, Peralez is “not a small person. He’s a big person.”
16
buddy to shoot me, and he shot me.” In response to the subsequent, above-quoted
question, Albert said “He was a Mexican guy, slim, (inaudible).” Albert also said the
man as wearing a “black shirt” and jeans, in his “early 20s,” and of “medium” height.12
The description Albert gave to the 911 dispatcher is consistent with the description
he subsequently gave at the hospital of the first man he encountered that day (i.e., the
person with whom he fought in the house), who Albert said weighed about 40 pounds
less than the second man. Moreover, at trial, defense counsel argued to the jury that there
was no indication on the 911 tape that Albert could identify the shooter. For these
reasons, we are not convinced by Peralez’s argument that Albert, inconsistently with
Peralez’s actual appearance, initially identified the person who shot him as the “ ‘slim’
person.”
In addition, we are not persuaded that the surveillance video substantially
influenced Albert’s identification of Peralez. At the lineup two weeks after the crime,
Albert said Peralez’s “eyes look the same” as those of the second perpetrator. This
explanation for Albert’s selection of Peralez bears no relationship to Albert’s review of
the surveillance video because Peralez’s eyes are not clearly visible in the recording. On
the surveillance video, Peralez appears briefly and his face is only depicted with clarity in
profile as he exits the house. At no point in the video is Peralez’s face shown in a way
similar to its appearance in the photo lineup.
In sum, based on our consideration of the totality of the circumstances, we
conclude Albert’s identifications of Peralez in the photo lineup and in court were reliable
and not tainted by Albert’s review of the surveillance video. (See Kennedy, supra, 36
Cal.4th at pp. 609–611.) Because the identifications were reliable, their admission did
not violate Peralez’s constitutional due process rights and the trial court did not err by
failing to strike the lineup or in-court identification evidence.
12
Later in the 911 call, Albert said all the perpetrators were Hispanic men who
had black hair.
17
B. Sufficiency of the Evidence for the Gang Enhancements
Peralez claims the evidence is insufficient to support the jury’s findings on the
gang sentencing enhancements alleged for all counts under section 186.22, subdivisions
(b)(1) and (4). More specifically, Peralez asserts there is insufficient evidence that he
acted with the specific intent to promote, further, or assist in any criminal conduct by
gang members. He also asserts that, even if he did act with the requisite intent, there is
insufficient evidence that the crimes were committed for the benefit of, at the direction
of, or in association with a criminal street gang.
1. Legal Principles
“In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Albillar (2010) 51 Cal.4th 47,
59–60 (Albillar); see also Jackson v. Virginia (1979) 443 U.S. 307, 318.) “We presume
every fact in support of the judgment the trier of fact could have reasonably deduced
from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing
court neither reweighs evidence nor reevaluates a witness’s credibility.’ ” (Albillar, at
p. 60.) Before we can set aside a verdict for insufficiency of the evidence, “it must
clearly appear that upon no hypothesis whatever is there sufficient evidence to support
[the jury’s finding].” (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
“ ‘[A] criminal offense is subject to increased punishment under the [Street
Terrorism Enforcement and Prevention] Act only if the crime is “gang related.” ’ ”
(Albillar, supra, 51 Cal.4th at p. 60.) Under section 186.22, subdivisions (b)(1) and (4),
the prosecution must prove that the underlying felony offense was “committed for the
18
benefit of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang members.”
Thus, there are two requirements (or prongs) for enhanced punishment under these
subdivisions. The underlying offense must have been committed: (1) for the benefit of,
at the direction of, or in association with any criminal street gang (the gang-related
prong); and (2) with the specific intent to promote, further, or assist in any criminal
conduct by gang members (the specific intent prong).13 (§ 186.22, subds. (b)(1) & (4);
see Albillar, at pp. 51, 59, 64–65; People v. Rios (2013) 222 Cal.App.4th 542, 564
(Rios).)
“ ‘[T]he record must provide some evidentiary support, other than merely the
defendant’s record of prior offenses and past gang activities or personal affiliations, for a
finding that the crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang.’ ” (People v. Ochoa (2009) 179 Cal.App.4th 650,
657; see also Albillar, supra, 51 Cal.4th at p. 60.) Moreover, “[r]arely is the perpetrator’s
intent proven by direct evidence; usually it must be inferred from the facts and
circumstances surrounding the case.” (People v. Perez (2017) 18 Cal.App.5th 598, 607
[citing Rios, supra, 222 Cal.App.4th at pp. 567–568].) “To prove the gang enhancement,
the prosecution may introduce expert testimony regarding street gangs.” (People v.
Gutierrez (2009) 45 Cal.4th 789, 820; see also People v. Vang (2011) 52 Cal.4th 1038,
1048.) The expert’s testimony, however, cannot be “purely conclusory and factually
unsupported.” (See People v. Ramirez (2016) 244 Cal.App.4th 800, 819–820; accord,
People v. Richardson (2008) 43 Cal.4th 959, 1008.)
13
Peralez does not challenge the sufficiency of the evidence for the other elements
of section 186.22. (See § 186.22, subds. (e) & (f); People v. Prunty (2015) 62 Cal.4th 59,
66–67; People v. Rios (2013) 222 Cal.App.4th 542, 564, fn. 10.)
19
2. Analysis
We begin our analysis by addressing the specific intent prong. Peralez observes
that the prosecution’s theory apparently rested on the fact that Peralez was a SEM
member and his confederate Jacob Salinas was a “SEM associate” when they committed
the charged crimes. He argues that “this theory suffers from a fatal flaw” because Salinas
was not an actual SEM gang member at the time of the crimes, only an associate which is
“ ‘one step below a gang member.’ ” He argues further there was no evidence the
unidentified third perpetrator was a SEM member or that charged offenses related to or
assisted other unnamed SEM members to commit other unspecified crimes. We are not
persuaded by Peralez’s arguments.
The specific intent prong may be proved by evidence that Peralez committed the
underlying offenses with a known gang member. (See Albillar, supra, 51 Cal.4th at
pp. 64–66, 68; see also People v. Villalobos (2006) 145 Cal.App.4th 310, 322; People v.
Romero (2006) 140 Cal.App.4th 15, 20.) As for who is a “gang member” under section
186.22, subdivisions (b)(1) and (4), “ ‘[m]ember’ and ‘membership’ have been held to be
terms of ordinary meaning that require no further definition.” (People v. McDonald
(2015) 238 Cal.App.4th 16, 35 [citing People v. Green (1991) 227 Cal.App.3d 692, 699,
disapproved on another ground in People v. Castenada (2000) 23 Cal.4th 743, 747–748;
see also People v. Rodriguez (2012) 55 Cal.4th 1125, 1131 (Rodriguez) [interpreting
section 186.22, subdivision (a)].)
When interpreting a statute, “our ‘fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose. [Citation.]’ [Citation.]
‘Because the statutory language is generally the most reliable indicator of that intent, we
look first at the words themselves, giving them their usual and ordinary meaning.’
[Citations.] ‘If the statutory language is unambiguous, then its plain meaning controls.’ ”
(People v. Ruiz (2018) 4 Cal.5th 1100, 1105–1106.) The Oxford English Dictionary
defines the noun “member” as “[a]ny of the individuals, countries, etc., belonging to or
20
forming a group, society, committee, or assembly.” (Oxford English Dict. Online
(2020).)14 To “belong” means “to be a member or affiliate of a particular group or
category; to be a follower or adherent of a person, a subject of a ruler, a member of a
family, a native or inhabitant of a place, etc.; (now esp.) to be a member of a club.”
(Oxford English Dict. Online (2020).)15
Based on the ordinary meaning of the word member, we conclude that a co-
participant in an underlying offense can be a “gang member” for the purposes of section
186.22, subdivisions (b)(1) and (4), if the co-participant affiliates himself or herself with
the relevant criminal street gang. Under our interpretation of the statute’s plain meaning,
there is no requirement that the co-participant have fulfilled any membership conditions
the gang may have erected for itself. Requiring proof that a co-participant, for example,
has been “jumped in” or deemed by the gang to have “crimed in,” in the absence of an
ambiguity in the statute or some absurd unintended consequence, would constitute an
improper judicial revision of section 186.22, subdivisions (b)(1) and (4). (See Rodriguez,
supra, 55 Cal.4th at p. 1131; People v. Goodliffe (2009) 177 Cal.App.4th 723, 726;
People v. Garcia (2018) 22 Cal.App.5th 1061, 1066.)
The evidence presented at Peralez’s trial satisfies this specific intent prong. Here,
there is substantial evidence that Salinas participated in the underlying crimes with
Peralez and that they knew each other, based on the contents of the cellphone Peralez
discarded when fleeing from police. In addition, the evidence demonstrates that Salinas
affiliated with the northern gang and SEM. He appeared on social media presenting a
SEM hand sign, claiming the color red, and displaying a graphic that included Norteño
gang signs and symbols. Further, Detective Pinon described how gang associates
14
[as
of November 3, 2020], archived at: .
15
[as of November 3, 2020], archived at: .
21
fraternize with SEM members, work to gain their approval, and commit crime at the
behest or for the benefit of the gang. For these reasons, we conclude the evidence was
sufficient for a reasonable jury to find that Peralez—when he committed the charged
crimes with Salinas (a person who affiliated with SEM)—had the specific intent to
promote, further, or assist in any criminal conduct by gang members, as required by the
statute.
In addition, even if we were to assume arguendo that promoting, furthering, or
assisting criminal conduct by a “SEM associate” during the underlying offenses is not
sufficient to satisfy the specific intent prong, the prong can be proved in other ways. The
specific intent requirement “applies to any criminal conduct” by gang members, whether
it is the current underlying offense or other criminal conduct. (Albillar, supra, 51 Cal.4th
at pp. 65–66; see also Rios, supra, 222 Cal.App.4th at pp. 564, 574 [“hold[ing] that the
section 186.22, [subdivision] (b)(1) gang enhancement may be applied to a lone actor”];
People v. Hill (2006) 142 Cal.App.4th 770, 774.)
Based on the evidence here, the jurors could have reasonably concluded that
Peralez specifically intended to promote, further, or assist other future criminal conduct
by gang members when he committed the underlying crimes in concert with Salinas.
Detective Pinon testified about the many reasons SEM members commit crime. He
explained that members commit crime to, among other things, bolster their reputations,
support the gang, and recruit new members. Members also educate others (including
recruits) about the gang and help them get promoted within the gang. In addition, as
mentioned above, gang associates commit crime upon direction and for the benefit of the
gang. It is reasonable for the jurors to have deduced from Pinon’s testimony that Peralez
evaluated, trained, and mentored associates like Salinas by committing crime with them,
and that Peralez acted with the intent to promote Salinas forward toward full membership
in the criminal enterprise and enhance his ability to assist SEM members in future
criminal conduct. Accordingly, even assuming that Salinas was not a “gang member”
22
under the statute when Peralez committed the charged offenses with him, there is
substantial evidence from which a reasonable trier of fact could find that Peralez
harbored the specific intent to promote, further, or assist other criminal conduct by gang
members when he committed the offenses.
Turning to the gang-related prong of section 186.22, subdivisions (b)(1) and (4),
Peralez maintains there was no evidence “anyone other than [himself] was a gang
member.” He also asserts there is no evidence that he discussed the crimes with other
gang members or gave any of the proceeds to the gang, or he and the other perpetrators
“did anything to identify they were gang members, or that a gang was involved.” He also
notes that the offenses “did not occur on the [SEM] gang’s turf, or that of a rival gang,
and none of the victims had any gang ties.” He asserts, in sum, that the evidence does not
support Pinon’s opinion that the offenses were committed for the benefit of, at the
direction of, or in association with SEM.
We reject Peralez’s claim that the evidence was insufficient to prove the offenses
were committed in association with or for the benefit of SEM. A crime is committed in
association with a gang if the “defendants relied on their common gang membership and
the apparatus of the gang in committing” it. (Albillar, supra, 51 Cal.4th at p. 60.) “A
trier of fact can rationally infer a crime was committed ‘in association’ with a criminal
street gang within the meaning of section 186.22, subdivision (b) if the defendant
committed the offense in concert with gang members.” (People v. Leon (2016) 243
Cal.App.4th 1003, 1021.) As discussed above, the evidence establishes that Salinas was
known to affiliate with SEM—and thus there was sufficient evidence from which the jury
could conclude he was a gang “member” within the meaning of section 186.22,
subdivisions (b)(1) and (4)—when he and Peralez committed the charged crimes. The
evidence also shows that they aided and abetted each other during the crimes, including
when Peralez shot Albert S. upon Salinas’s request. In addition, Pinon explained why
SEM members and associates commit crime and why they do so together. From this
23
evidence, the jurors could have reasonably inferred that Peralez and Salinas relied on
each other and their mutual gang affiliation when committing the charged crimes. For
these reasons, we conclude there is substantial evidence that Peralez acted with Salinas to
commit the underlying offenses in association with their gang.
Further, although there was no evidence that the proceeds of the crimes were, in
fact, earmarked for or delivered to the gang, the jurors could have reasonably deduced
that Peralez intended to benefit SEM by bolstering his and the gang’s reputation for
committing criminal and violent acts. “Expert opinion that particular criminal conduct
benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the
inference that the conduct was ‘committed for the benefit of . . . a[ ] criminal street gang’
within the meaning of section 186.22(b)(1).” (Albillar, supra, 51 Cal.4th at p. 63; see
also People v. Hunt (2011) 196 Cal.App.4th 811, 821.)
We note that the crimes committed by Peralez and Salinas on October 22 were,
according to the expert’s testimony, among the primary activities of SEM and if a SEM
member were to commit residential burglaries for his own benefit, he would risk
punishment from the gang. These facts support a reasonable conclusion that Peralez’s
crimes were the type of crime committed for the benefit of his gang. Further, Peralez had
multiple gang-related tattoos on his face and arms at the time of the crimes. The
evidence also included a photograph taken shortly after the crimes showing Peralez
holding a gun that had been stolen from the Thistle Drive house and likely had been used
to shoot Albert. From this photo the jurors could have reasonably concluded, in accord
with Pinon’s testimony about gang member proclivities, that Peralez sought to boost his
own and SEM’s reputation as successful felons and document his and the gang’s
penchant for violence. Moreover, for the reasons discussed above, the jurors could have
inferred that Peralez acted to benefit SEM by committing the crimes with Salinas, so that
Salinas could be promoted to full member and to increase Salinas’s utility to SEM. For
these reasons, we conclude there is substantial evidence that Peralez committed the
24
underlying offenses for the benefit of SEM, and the cases Peralez cites in support of his
claim are materially distinguishable based on the facts of his case.
In sum, there is sufficient evidence proving that the underlying felony offenses
were committed by Peralez for the benefit of or in association with SEM, with the
specific intent to promote, further, or assist in any criminal conduct by SEM members.
While the jury might have rejected the prosecution’s evidence, our sole task on appeal is
to determine whether there was sufficient evidence, drawing all reasonable inferences in
favor of the jury’s verdict, to support its findings. We conclude that there was.
C. CALCRIM No. 315 and the Eyewitness’s Level of Certainty
Peralez contends his due process rights were violated when the trial court
instructed the jury with CALCRIM No. 315, because that instruction told the jurors to
consider an eyewitness’s level of certainty when evaluating the identification testimony.
The instruction specifically recommended the jurors consider the following, which we
refer to as the “certainty factor”: “How certain was the witness when he or she made an
identification?”
Peralez argues that the certainty of an eyewitness does not correlate with the
accuracy of his or her identification. He maintains that instructing on eyewitness
certainty reduced the prosecution’s burden of proof and negatively impacted his ability to
present a defense to the eyewitness’s identification of him. He further asserts that his
defense counsel’s failure to object to or seek modification of the certainty factor did not
forfeit his current claim because the trial court chose to instruct on eyewitness
identification and, thus, was required to instruct in a legally correct manner. He also
contends his claim should be reviewed on the merits because the erroneous instruction
affected his substantial rights under section 1259.16 Peralez finally argues that inclusion
16
Peralez also argues, in the alternative, that his defense counsel performed
deficiently by failing to object to the certainty factor and he was prejudiced by defense
counsel’s deficient performance.
25
of the certainty factor in the jury instructions either amounts to structural error or was
prejudicial under Chapman, supra, 386 U.S. at p. 24 (for federal constitutional error) and
People v. Watson (1956) 46 Cal.2d 818, 836 (for state law error (Watson)).
The Attorney General counters that Peralez’s failure to object to the certainty
factor forfeited his current claim of error because the instruction did not constitute an
incorrect statement of law or affect Peralez’s substantial rights. In addition, the Attorney
General contends that any error in instructing on the certainty factor was harmless under
Chapman and Watson.
1. Background
Pretrial, the prosecutor proposed several jury instructions but did not request
CALCRIM No. 315. Near the close of evidence, the trial court and parties discussed the
final jury instructions off the record. Thereafter, the trial court recounted it had
“suggested one or two other instructions, and we may have included them or not after [it]
spoke with counsel.” Although the record does not indicate who proposed using
CALCRIM No. 315, the instruction was given upon agreement of the parties.
The tailored version of CALCRIM No. 315 provided to the jury read: “You have
heard eyewitness testimony identifying the defendant. As with any other witness, you
must decide whether an eyewitness gave truthful and accurate testimony. [¶] In
evaluating identification testimony, consider the following questions: [¶] • Did the
witness know or have contact with the defendant before the event? [¶] • How well could
the witness see the perpetrator? [¶] • What were the circumstances affecting the
witness’s ability to observe, such as lighting, weather conditions, obstructions, distance,
and duration of observation? [¶] • How closely was the witness paying attention?
[¶] • Was the witness under stress when he or she made the observation? [¶] • Did the
witness give a description and how does that description compare to the defendant?
[¶] • How much time passed between the event and the time when the witness identified
the defendant? [¶] • Was the witness asked to pick the perpetrator out of a group?
26
[¶] • Did the witness ever fail to identify the defendant? [¶] • Did the witness ever
change his or her mind about the identification? [¶] • How certain was the witness when
he or she made an identification? [¶] • Are the witness and the defendant of different
races? [¶] • Was the witness able to identify other participants in the crime? [¶] • Was
the witness able to identify the defendant in a photographic or physical lineup? [¶] • Was
the witness affected by viewing the surveillance video? [¶] • Were there any other
circumstances affecting the witness’s ability to make an accurate identification? [¶] The
People have the burden of proving beyond a reasonable doubt that it was the defendant
who committed the crime. If the People have not met this burden, you must find the
defendant not guilty.” (Italics added to indicate an addition to the pattern instruction.)
2. Analysis
We review de novo whether an instruction correctly states the law.17 (People v.
Posey (2004) 32 Cal.4th 193, 218.) Moreover, we presume that jurors are “able to
understand and correlate instructions” and “have followed the court’s instructions.”
(People v. Sanchez (2001) 26 Cal.4th 834, 852.)
The California Supreme Court presently has before it the issue Peralez raises here.
(People v. Lemcke (June 21, 2018, G054241) [nonpub. opn.] [2018 WL 3062234], review
granted Oct. 10, 2018, S250108.)18 Previously, the Supreme Court upheld the validity of
CALJIC No. 2.92—the predecessor to CALCRIM No. 315—which includes a similar
certainty factor. (See People v. Sánchez (2016) 63 Cal.4th 411, 461–462 (Sánchez)
[rejecting a challenge to CALJIC No. 2.92’s direction to consider “ ‘the extent to which
the witness is either certain or uncertain of the identification’ ”]; see also People v.
17
Because we address the merits of Peralez’s instructional error claim, we need
not separately consider the question of forfeiture or Peralez’s alternative claim of
ineffective assistance of counsel.
18
The California Supreme Court granted review in Lemcke on the following
question: “Does instructing a jury with CALCRIM No. 315 that an eyewitness’s level of
certainty can be considered when evaluating the reliability of the identification violate a
defendant’s due process rights?”
27
Johnson (1992) 3 Cal.4th 1183, 1231–1232; People v. Wright (1988) 45 Cal.3d 1126,
1141.)
We disagree with Peralez’s contention that Sánchez is materially distinguishable
on its facts and merits from his case. Unless and until the California Supreme Court
decides that it is a violation of the due process clause to instruct the jury with a certainty
factor, there was no error in the instruction given to Peralez’s jury in light of our high
court’s precedent. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
Even assuming arguendo that the trial court erred by including the certainty factor
in CALCRIM No. 315, reversal is not warranted in the present case. Peralez argues that
inclusion of the certainty factor is structural error. This argument fails because the
certainty factor neither improperly lowered the prosecution’s burden of proof nor
effectively invalidated the jury’s findings. (See People v. Aranda (2012) 55 Cal.4th 342,
365.) CALCRIM No. 315, in fact, reminded the jurors of the People’s beyond-a-
reasonable-doubt burden. Moreover, inclusion of the certainty factor in the list of factors
for consideration when evaluating identification testimony is unlike the fundamental
errors that have been deemed structural heretofore. (See People v. Wang (2020) 46
Cal.App.5th 1055, 1071.) Rather, like most instructional errors, the error here is
amenable to harmless error analysis. (See Aranda, at p. 363.)
As for which harmless error standard should apply to the instructional error, we
are not persuaded that the Chapman standard applies. Our Supreme Court used the
Watson standard in Sánchez, a case in which defendant asserted that the trial court erred
by instructing the jury it could consider the certainty factor in CALJIC No. 2.92. (See
Sánchez, supra, 63 Cal.4th at pp. 462–463; see also People v. Ward (2005) 36 Cal.4th
186, 214.) We discern no reason to apply a harmless error standard different than that
employed in Sánchez. The certainty factor in Sánchez is essentially the same as the one
in this case. Hence, the same harmless error standard should apply. Moreover, United
28
States Supreme Court precedent permits courts to consider a witness’s level of certainty
when determining the reliability of an identification for purposes of admissibility under
due process principles. (See Neil, supra, 409 U.S. at pp. 199–200.) Thus, inclusion of
the certainty factor in CALCRIM No. 315 for purposes of weighing the evidence does
not itself amount to a federal constitutional error. Accordingly, we apply the Watson
standard here.
No prejudice resulted from inclusion of the certainty factor in this case because
there is no reasonable probability the error affected the result of Peralez’s trial. (See
Watson, supra, 46 Cal.2d at p. 836.) As in Sánchez, the certainty factor was presented in
a neutral manner and did not equate the certainty of a witness’s identification with its
accuracy. (Sánchez, supra, 63 Cal.4th at p. 462.) The certainty factor also was only one
of more than a dozen factors offered for the jury’s consideration and it did not advise the
jurors what weight to assign to the eyewitness’s confidence. Moreover, as noted above,
the instruction itself reminded the jurors of the prosecution’s burden to prove Peralez’s
guilt beyond a reasonable doubt.
In addition, the evidence against Peralez supports a conclusion that he was not
prejudiced by the challenged instruction. (See Sánchez, supra, 63 Cal.4th at pp. 462–
463.) Leaving aside Albert’s identification of Peralez, the evidence linking Peralez to the
crimes at Albert’s house was strong. Peralez and his confederate Salinas were recorded
by surveillance cameras at the scene of a burglary on nearby Thistle Drive slightly more
than an hour before the crime at Albert’s house. A Honda Accord was depicted in the
surveillance video from Thistle Drive and served as the getaway car for the attempted
burglary on Carlotta Court and the crime against Albert. In addition, the surveillance
video shows Peralez with a gun in his hand as he leaves the house. Later in the day, after
Albert was shot, Peralez was photographed holding a .22-caliber Ruger pistol stolen from
the house on Thistle Drive. Peralez immediately fled from the police that afternoon when
they attempted to conduct a vehicle stop. Peralez also possessed a cellphone and receipts
29
that had been stolen from Ellen N.’s home on Crocus Drive. In light of the similarities
between the charged crimes, the temporal and spatial proximity of the crimes, and that
Peralez possessed a gun before and after Albert was shot, there is strong evidence
proving that Peralez committed the crimes against Albert and was the shooter.
For these reasons, we conclude that it is not reasonably probable that Peralez
would have received a more favorable result had the trial court excluded the certainty
factor from CALCRIM No. 315. Further, even if we were to apply the Chapman
standard here, we would find the inclusion of the certainty factor was harmless beyond a
reasonable doubt. (See Sánchez, supra, 63 Cal.4th at pp. 462–463.)
D. Senate Bill No. 1393 and the Section 667, Subdivision (a) Enhancements
The trial court found true a prior serious felony conviction allegation under
section 667, subdivision (a) (section 667(a)). As part of Peralez’s sentence, the trial court
imposed the consecutive five-year enhancement under section 667(a) as part of the
determinate sentence on counts 2 through 6 and as part of the indeterminate sentence for
count 1.
Peralez argues that Senate Bill No. 1393, effective January 1, 2019, gives the trial
court discretion to strike the allegation under section 667(a)—an authority the trial court
did not possess at the time it sentenced Peralez. He claims, therefore, that his case should
be remanded for the trial court to consider whether to exercise its discretion under section
1385 to strike the enhancement. (Stats. 2018, ch. 1013, §§ 1, 2; People v. Jones (2019)
32 Cal.App.5th 267, 272 (Jones); People v. Johnson (2019) 32 Cal.App.5th 26, 68;
People v. Garcia (2018) 28 Cal.App.5th 961, 972–973.) The Attorney General agrees, as
do we.
Senate Bill No. 1393 applies to defendants whose judgments are not yet final as of
the amendment’s effective date and, thus, applies to Peralez. (People v. Stamps (2020) 9
Cal.5th 685, 699.) Nevertheless, “[w]e are not required to remand to allow the court to
exercise its discretion if ‘the record shows that the trial court clearly indicated when it
30
originally sentenced the defendant that it would not in any event have stricken
[the] . . . enhancement’ even if it had the discretion.” (Jones, supra, 32 Cal.App.5th at
p. 273.) Without a clear indication of the trial court’s intent, remand is required. (People
v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
We have reviewed the transcript of Peralez’s sentencing hearing. The trial court
proceeded with sentencing under the assumption that it lacked discretion to strike the
section 667(a) enhancement. The record does not clearly show whether the trial court
would have stricken the enhancement if it had the discretion to do so. We therefore
remand Peralez’s case to the trial court so that it may hold a hearing to consider whether
to exercise its independent discretion to strike the prior conviction enhancement.
(§ 667(a).) Peralez, his counsel, and counsel for the People have the right to be present at
the hearing. (See People v. Rocha (2019) 32 Cal.App.5th 352, 360.) We express no
opinion as to how the trial court should exercise its discretion.
E. Errors in the Abstracts of Judgment
Although not raised by either party on appeal, we note that the abstracts of
judgment do not conform to the oral pronouncement of judgment regarding the section
667(a) enhancements. Specifically, on count 1, the trial court imposed an indeterminate
prison term of 30 years to life plus a consecutive five-year enhancement under section
667(a). However, the abstract of judgment for the indeterminate sentence does not reflect
the section 667(a) enhancement. Instead, the section 667(a) enhancement attendant to
count 1 is included in the abstract of judgment for the determinate sentence imposed for
counts 2 through 6. The determinate sentence abstract states that the time imposed under
section 667(a) is “10” years. However, the trial court imposed only one five-year section
667(a) enhancement for the determinate sentence.
Relatedly, the determinate sentence abstract states in section 8 that the “TOTAL
TIME” is “34 [years] 8 [months].” This figure is incorrect because it includes the section
667(a) five-year enhancement imposed as part of the indeterminate sentence on count 1.
31
The total time actually imposed for the determinate sentence on counts 2 through 6 is 29
years and eight months. In addition, the box in section 7 of the determinate sentence
abstract is not checked. It should be checked because Peralez’s sentence includes an
“Additional Indeterminate term (see CR-290),” as reflected on the separate indeterminate
sentence abstract.
If, on remand, the trial court does not strike the section 667(a) enhancement, it
should correct and amend the current abstracts of judgment to reflect the oral
pronouncement of judgment. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385–
386.) On the other hand, if the trial court strikes the section 667(a) enhancement, it must
resentence Peralez and issue amended abstracts of judgment reflecting the new sentence.
III. DISPOSITION
The judgment is reversed. The matter is remanded for the limited purpose of
permitting the trial court to determine whether to strike the Penal Code section 667,
subdivision (a) enhancement under Penal Code section 1385. If the trial court strikes the
enhancement, it shall resentence defendant accordingly and transmit amended abstracts
of judgment to the Department of Corrections and Rehabilitation. If the trial court
declines to strike the enhancement, it shall reinstate the original sentence, prepare
amended abstracts of judgment to correctly reflect the trial court’s original oral
pronouncement of judgment, and transmit the amended abstracts of judgment to the
Department of Corrections and Rehabilitation. In all other respects, Peralez’s convictions
and sentence are affirmed.
32
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Danner, J.
WE CONCUR:
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Greenwood, P.J.
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Grover, J.
H046144
People v. Peralez