Opinion
A149340
09-21-2018
THE PEOPLE, Plaintiff and Respondent, v. CALVIN EARL ODOM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C177540)
A jury convicted Calvin Earl Odom of second degree murder (Pen. Code, § 187, subd. (a)) and possession of firearm by a felon (§ 29800, subd. (a)(1)). The jury found true the allegation that during the murder Odom personally and intentionally discharged a firearm causing great bodily injury and death. The trial court sentenced Odom to 40 years to life in prison, which included 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)).
Statutory references are to the Penal Code.
On appeal, Odom contends the court erred by instructing the jury with CALCRIM No. 315, on eyewitness identifications. We disagree and affirm Odom's conviction. We remand for the limited purpose of allowing the trial court to exercise its discretion under section 12022.53, subdivision (h) (section 12022.53(h)).
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2015, the prosecution charged Odom with murder (§ 187, subd. (a)), and alleged various enhancement allegations (§§ 12022.7, 12022.53, 12022.5). The prosecution also charged Odom with possession of a firearm by a felon (§ 29800, subd. (a)(1)). The information alleged the murder constituted a violent felony (§§ 667.5, subd. (c), 1170, subd. (h)(3)), and that Odom had three prior felony convictions and had served two prior prison terms (§ 667.5, subd. (b)).
A. Prosecution Evidence
In March 2013, Vittorio "Vick" Jackson was shot and killed in a laundromat parking lot, in an area of Oakland known for drug sales. Crime scene investigators determined the bullet recovered from Jackson's chest was likely fired from a revolver. In April 2013, the police received an anonymous tip that Odom was the shooter. Police officers interviewed Glen Houston, who identified Odom as the shooter. Houston told police that Odom argued with Jackson before shooting him with a revolver. Houston identified Odom in a photographic lineup, writing "Kill Vick" next to Odom's picture.
We provide an overview of the trial testimony only as necessary for context. The prosecution witnesses had drug-related convictions and were either in custody or on probation at the time of trial. None of the prosecution witnesses had been promised anything in exchange for their testimony. --------
Officers also interviewed Harry Grayson, who was in the parking lot with Jackson on the morning of the shooting. Grayson saw two men approach Jackson and argue with him. The argument turned into a scuffle. Grayson saw a man—later identified as Odom—shoot Jackson with a revolver. After shooting Jackson, Odom pointed the gun at Grayson, then shot Jackson two more times.
On the morning of the shooting, David Pugh was in the parking lot, where he saw Grayson, Houston, and Kevin Smith. Pugh did not see Jackson get shot, but he saw Odom and one other man flee. One of the men was carrying a firearm. After the shooting, Grayson told Pugh that he "saw the whole thing." In a photographic lineup conducted during a police interview, Pugh identified Odom as one of the men who "was there and was runnin' away." Police conducted a photographic lineup with Smith, who identified Odom as the person who fled after the shooting. Video surveillance footage recovered from a nearby home security camera showed two people in dark hooded sweatshirts going to and fleeing from the parking lot where Jackson was shot and killed.
B. Defense Evidence
Odom testified he had prior convictions. Odom was wearing jeans and black hooded sweatshirt on the day of the incident. He and a friend drove to the parking lot so his friend could buy drugs. As Odom and his friend walked up a stairwell adjacent to the parking lot, they crossed paths with Jackson. Odom knew Jackson, and they talked for an hour. Eventually, Jackson left the stairwell. Two or three minutes later, Odom heard gunshots and fled. Odom saw Jackson on the ground but did not try to help him.
Odom denied knowing or recognizing the prosecution witnesses. He did not remember hearing an argument between his friend and Jackson before the gunshots. He admitted lying in a police interview, when he claimed he did not know Jackson, and when he claimed he did not know his own whereabouts on the day of the shooting. After Jackson's death, Odom committed an armed bank robbery. In 2014, he was convicted of federal armed bank robbery and was serving a prison term.
C. Jury Instructions, Verdict, and Sentence
Both parties requested CALCRIM No. 315 without modification. The court stated it would give CALCRIM No. 315 because both parties "requested [it]." Neither party objected or asked the court to modify the instruction. The court instructed the jury as follows: "You have heard eyewitnesses testify identifying the defendant. As with any other witness, you must decide whether a witness 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? [¶] 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 witnesses and the defendant of different races? [¶] Was a witness able to identify other participants in the crime? [¶] Was the witness able to identify the defendant in a photographic or physical lineup? [¶] Were there any other circumstances affecting the witness's ability to make an accurate identification?" The instruction concludes: "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 that burden, you must find the defendant not guilty."
In 2016, the jury convicted Odom of second degree murder (§ 187, subd. (a)) and possession of firearm by a felon (§ 29800, subd. (a)(1)). The jury found true the allegation that during the murder Odom personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). Odom admitted the prior convictions and prison terms. At the June 2016 sentencing hearing, defense counsel moved to dismiss Odom's prior convictions "in the interest of justice." The prosecution did not object, and the court granted the motion. The court found several circumstances in aggravation and no mitigating circumstances. It sentenced Odom to 40 years to life in prison. On the second degree murder conviction, the court sentenced Odom to the mandatory sentence of 15 years to life, with a mandatory consecutive term of 25 years to life for the firearm enhancement. On the felon in possession of a firearm conviction, the court sentenced Odom to the two-year midterm, to run concurrently to the second degree murder conviction.
II. DISCUSSION
A. No Error in Instructing the Jury with CALCRIM No. 315
Odom contends the court erred by giving CALCRIM No. 315 for two reasons. First, he claims that one sentence from the instruction—"How certain was the witness when he or she made an identification"—is "legally incorrect." Second, he argues the instruction reduced the prosecution's burden of proof. These arguments are forfeited. The court instructed the jury with CALCRIM No. 315 at Odom's request. Odom did not object to the instruction or request a modification. "If [Odom] had wanted the court to modify the instruction, he should have requested it." (People v. Sánchez (2016) 63 Cal.4th 411, 461.)
Odom's claims also fail on the merits. CALCRIM No. 315 is not "legally incorrect." (See People v. Golde (2008) 163 Cal.App.4th 101, 119 [upholding validity of the instruction].) CALCRIM No. 315 informs the jury it should consider whether the eyewitness was confident in his identification. It does not tell the jury that eyewitness testimony is reliable or otherwise trustworthy, nor does it advise the jury what weight to assign to the eyewitness's confidence. CALCRIM No. 315 presents the factor of witness certainty in a neutral manner. (People v. Sánchez, supra, 63 Cal.4th at p. 462.) The instruction does not reduce the prosecution's burden of proof—to the contrary, it reminds the jury the prosecution has the burden of proving its case beyond a reasonable doubt. Odom's extensive discussion of authority from other jurisdictions does not demonstrate the instruction was incorrect. (Ibid.) The court did not err in instructing the jury with CALCRIM No. 315. (Golde, at p. 119.)
B. Limited Remand for Section 12022 .53(h)
We requested and received supplemental briefing on Senate Bill No. 620 (2017-2018 Reg. Sess.), which became effective while Odom's appeal was pending. At the time of Odom's crime and sentencing, section 12022.53, subdivision (d) and former section 12022.53(h) imposed a mandatory additional and consecutive prison term of 25 years to life for personally and intentionally discharging a firearm causing great bodily injury during the commission of certain enumerated felonies, including murder. In October 2017, the Governor approved Senate Bill No. 620, which amended section 12022.53 effective January 1, 2018. (Stats. 2017, ch. 682, § 2.) Under the amendment, a trial court now has discretion to strike or dismiss a firearm enhancement. (§ 12022.53(h).) The statute expressly applies "to any resentencing that may occur pursuant to any other law." (Ibid.) The Attorney General concedes the amendment applies and we should remand to allow the trial court to exercise its discretion whether to strike the enhancement. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678; People v. Mathews (2018) 21 Cal.App.5th 130, 132.) We accept the concession and remand to allow the trial court to exercise its discretion.
III. DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for the limited purpose of allowing the trial court to exercise its discretion under section 12022.53(h).
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.