People v. Alexander CA2/6

Filed 8/18/21 P. v. Alexander CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE OF THE STATE 2d Crim. No. B304691
OF CALIFORNIA, (Super. Ct. No. SA099767)
(Los Angeles County)
Plaintiff and Respondent,
v.
ADRIANNA ALEXANDER,
Defendant and Appellant.
Adrianna Alexander appeals the judgment entered after a
jury convicted her of attempted second degree robbery (Pen.
Code,1 §§ 211, 664). Imposition of sentence was suspended and
appellant was placed on probation for five years subject to
various terms and conditions. Appellant raises claims of
evidentiary, instructional, and cumulative error. We affirm.
1 All statutory references are to the Penal Code.
STATEMENT OF FACTS
Prosecution
On July 3, 2018, Jose Gudino was working at a Party City
store located on the corner of South Sepulveda Boulevard and
Exposition Boulevard when appellant approached him and asked
if he was the manager. Gudino, who was crouched down stocking
shelves, looked up at appellant and replied in the affirmative.
Appellant was holding a canvas bag and was wearing sunglasses,
a wig, and a black jogging suit with a white stripe. Appellant
told Gudino that she was robbing him and had a gun in her bag
and ordered him to go to the front of the store and give her the
money from the cash registers.
Gudino stood up, had a face-to-face view of appellant from
approximately one foot away, and began walking with her toward
the cash registers. As they were walking, Gudino used his hand-
held radio to tell another employee that the store was being
robbed and to call the police. As Gudino and appellant neared
the front of the store, the other employee loudly announced that
he had called the police and they were on their way. Appellant
ran out the front door and Gudino tried to pursue her, but
appellant held the door closed from the outside.
As appellant was holding the front door closed, Keia
McDaniel attempted to enter the store as a customer. Appellant
bumped into McDaniel near the door before running away.
McDaniel asked Gudino what had happened and he told her that
appellant had just tried to rob the store. McDaniel ran after
appellant while Gudino went outside and saw appellant running
east on Exposition Boulevard. Gudino called 911 and described
appellant as a Black woman in her 30’s wearing a black jogging
suit.
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McDaniel followed appellant for a few blocks through an
alley on Tilden Avenue, then lost sight of her as she ran between
a black car, a white car, and a gray or silver subcompact
Hyundai. A construction worker on Tilden Avenue asked
McDaniel if she was “looking for the black chick” and told her he
had just seen her get into the Hyundai. The construction worker
also showed McDaniel a photograph he had taken of the
Hyundai’s license plate and McDaniel made a notation of the
license plate number on her cell phone.
When Los Angeles Police Officer James Allen and his
partner arrived in response to the 911 call, McDaniel flagged
them down and related what had happened. She also showed the
officers the license plate number of the Hyundai in which
appellant had fled. It was subsequently determined that from
May 3, 2018 until August 3, 2018, appellant had rented the
Hyundai from an Enterprise Rent-A-Car branch (Enterprise) on
Sepulveda Boulevard.
On July 11, Gudino identified appellant from a six-pack
photographic lineup as the perpetrator of the attempted robbery
and emphasized that he was “a hundred percent sure” of the
identification. Gudino also identified appellant at the
preliminary hearing and at trial.
Enterprise’s records showed that on June 18, 2018,
appellant was left a voicemail message stating that the credit
card she wanted to use for an extension of her rental of the
Hyundai had been declined. Appellant responded that she would
pay for the extension on June 22, but she did not do so. On June
25, Enterprise left appellant a voicemail message stating that the
company would be initiating the “conversion process,” which
applies when a customer fails to return or pay for a car. On July
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6 and July 9, Enterprise left appellant additional messages. On
July 10, appellant told an Enterprise representative she would
call back by July 12 to pay off the delinquent balance. On July 13
and 24, Enterprise sent appellant additional messages
demanding payment. Appellant finally returned the car on
August 3 and paid the full due balance of $2,637.59.
Defense
Dr. Mitchell Eisen, a psychologist, testified for the defense
as an expert on eyewitness identifications. Dr. Eisen explained
that the passage of time can affect the reliability of an
identification. Photographs or information received after an
event can alter or erroneously “fill in the gaps” in a witness’s
memory of the event or a perpetrator’s appearance. Although
cross-racial identifications can be accurate, it is more difficult for
a person to identify someone of a different race. Moreover,
witnesses often assume that one of the individuals included in a
lineup is the perpetrator. There are cases in which witnesses
have expressed 100 percent certainty in an identification but
physical evidence has later proven them wrong. The doctor
acknowledged, however, that having a face-to-face view of a
witness in good lighting conditions makes it a “heck of a lot
easier” to make an accurate identification.
DISCUSSION
Evidence Of Appellant’s Rental Car Payment Delinquency
Appellant contends the trial court erred in admitting the
evidence regarding her difficulties in making her rental car
payments as proof of her motive to commit the attempted
robbery. The People concede that the evidence should have been
excluded but contend the error was harmless. We accept the
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People’s concession of error and agree that appellant suffered no
resulting prejudice.
Over appellant’s objection, the court admitted the
challenged evidence and reasoned “[t]he fact that you owe people
money is motive for committing a robbery.” It is well-settled,
however, that “a defendant’s poverty generally may not be
admitted to prove a motive to commit a robbery or theft; reliance
on such evidence is deemed unfair to the defendant, and its
probative value is outweighed by the risk of prejudice.” (People v.
Koontz (2002) 27 Cal.4th 1041, 1076; accord, e.g., People v.
Carrillo (2004) 119 Cal.App.4th 94, 101-102.) Although there are
exceptions to this rule (see, e.g., People v. Edelbacher (1989) 47
Cal.3d 983, 1023-1024 [evidence of murder defendant’s financial
problems admissible to prove financial gain special circumstance
allegation]), the People concede that no such exception applies
here.
Although the court thus erred in admitting the evidence,
reversal is not required because it is not reasonably probable
appellant would have achieved a more favorable result had the
evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818,
836; People v. Carrillo, supra, 119 Cal.App.4th at pp. 103-104
[applying Watson standard in reviewing erroneous admission of
evidence of defendant’s poverty to prove motive].) Gudino was
able to observe appellant face-to-face during the crime and
subsequently identified her from a photographic lineup.
Moreover, other evidence established that appellant fled the
scene in the Hyundai she was renting. As the People aptly put it,
“[w]hile no single person saw the perpetrator’s entire flight from
the Party City store to the car, there can be no reasonable doubt
that the woman seen by Gudino, and then McDaniel, and then
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the unnamed construction worker was the same person—
appellant.” Appellant’s claim that she was prejudiced by the
erroneous admission of the challenged evidence thus fails.
CALCRIM No. 315
Appellant claims the court violated her due process rights
by instructing the jury pursuant to CALCRIM No. 315 that it
could consider a witness’s certainty in evaluating eyewitness
testimony identifying the defendant as the perpetrator.2 We
agree with the People that this claim is both forfeited and
without merit.
Appellant did not object to the giving of CALCRIM No. 315
below and the trial court had no sua sponte duty to modify the
instruction. Accordingly, appellant’s claim that the instruction
should have been modified to omit any reference to the certainty
of an eyewitness identification is forfeited. (People v. Sanchez
(2016) 63 Cal.4th 411, 461 [recognizing that “[i]f defendant had
wanted the court to modify the [certainty] instruction, [s]he
should have requested it. The trial court has no sua sponte duty
to do so”]; see also People v. Ward (2005) 36 Cal.4th 186, 213
[recognizing same].)
In any event, while the appeal was pending our Supreme
Court rejected appellant’s claim that the challenged portion of
CALCRIM No. 315 violated her due process rights. (People v.
Lemcke (2021) 11 Cal.5th 644 (Lemcke)). The court nevertheless
2 CALCRIM No. 315 states in pertinent part: “You have
heard eyewitness testimony identifying the defendant. As with
any other witness, you must decide whether an eyewitness gave
truthful and accurate testimony. [¶] In evaluating identification
testimony, consider the following questions: [¶] . . . [¶] How
certain was the witness when he or she made an identification?”
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recognized the instruction has “the potential to mislead jurors”
given the “near unanimity in the empirical research that ‘“under
most circumstances, witness confidence or certainty is not a good
indicator of identification accuracy.”’” (Id. at p. 665.) The court
referred the matter to the Judicial Council and the council’s
advisory Committee on Criminal Jury Instructions “to evaluate
whether or how the instruction might be modified to avoid juror
confusion regarding the correlation between certainty and
accuracy.” (Id. at p. 647; accord id. at p. 668.) The court also
exercised its supervisory powers to “direct that until the Judicial
Council has completed its evaluation, trial courts should omit the
certainty factor from CALCRIM No. 315 unless the defendant
requests otherwise.” (Id. at pp. 647-648; accord id. at p. 669.)
As the court held in Lemcke, the challenged portion of the
instruction does not expressly equate certainty with accuracy.
(Lemcke, supra, 11 Cal.5th at p. 657.) Even if the instruction
were susceptible to such an interpretation, appellant—like the
defendant in Lemcke—presented Dr. Eisen’s expert testimony
challenging that interpretation. (Id. at pp. 657-658.) Moreover,
the jury instructions as a whole made clear that the challenged
portion of CALCRIM No. 315 did not lower the prosecution’s
burden of proof. (Lemcke, at p. 658.) The jury was instructed
pursuant to CALCRIM Nos. 220 and 315 that appellant was
presumed innocent and that the People had the burden of proving
her guilt beyond a reasonable doubt. (Ibid.) The jury was further
instructed pursuant CALCRIM No. 226 that “[p]eople sometimes
honestly forget things or make mistakes about what they
remember” and that it was the jury’s sole province to “judge the
credibility or believability of the witnesses.” (Lemcke, at p. 658.)
Appellant also had a full and fair opportunity to cross-examine
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Gudino regarding his identification of her. (Id. at p. 660.) Under
the circumstances, the certainty instruction did not violate
appellant’s due process rights or otherwise render her trial
fundamentally unfair. (Id. at p. 661.) Given the strong evidence
of appellant’s guilt, it is also clear that any error in giving the
instruction was harmless regardless of the standard of review.
Cumulative Error
Appellant finally contends that the cumulative effect of the
alleged errors compels the reversal of her conviction. We are not
persuaded. Although we have concluded that the court erred in
admitting the evidence regarding her financial difficulties, we
also concluded that the error was not prejudicial. We rejected
appellant’s claim of instructional error and concluded that any
such error was harmless beyond a reasonable doubt. “We
likewise conclude that when the errors are considered together,
their cumulative effect did not result in substantial prejudice to
[appellant].” (People v. Price (1991) 1 Cal.4th 324, 465.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J. YEGAN, J.
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Upinder S. Kalra, Judge
Superior Court County of Los Angeles
______________________________
Teresa Biagini, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Noah P. Hill, and
Scott A. Taryle, Supervising Deputy Attorneys General, for
Plaintiff and Respondent.