Opinion
D072578
10-04-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIE TYRONE SHIPLEY, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD269858) APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General for Plaintiff and Respondent.
A jury found Willie Tyrone Shipley guilty of evading an officer with reckless driving and driving when privilege is suspended or revoked. The court sentenced him to prison for five years. He now contends his conviction should be reversed for instructional error, claiming that the portion of the eyewitness identification jury instruction regarding witness certainty is incorrect. We affirm.
BACKGROUND
1. Evasion and Pursuit of Shipley's Silver Saturn Ion
On February 6, 2016, at about 10:15 p.m., California Highway Patrol (CHP) officers Burger and Cavataio were on patrol in a marked CHP vehicle when they saw a silver Saturn Ion with an expired registration sticker. Officer Cavataio, who was driving, observed that the Saturn's driver was male. The officer slowed the patrol vehicle to move behind the Saturn; the Saturn also slowed down. Officer Burger ran the license plate number and confirmed that the Saturn's vehicle registration had expired.
After moving behind the Saturn, Officer Cavataio activated the overhead lights of the patrol vehicle to initiate a traffic stop. This activated the patrol vehicle's mobile video audio recording system (MVARS), which automatically records from two cameras, including one forward-facing, stationary camera at the front of the patrol vehicle.
The driver of the Saturn did not immediately yield, so Officer Cavataio activated the siren by pushing the horn several times. The Saturn eventually slowed and exited the freeway at College Avenue. Officer Burger used the patrol vehicle's public address system to order the driver to make one right turn, and then another right turn into a large parking lot that could serve as a safe place to make a traffic stop. The Saturn's driver complied with instructions to make the first right turn, but when instructed to turn into the parking lot, the driver accelerated away from the officers.
The officers pursued the Saturn. Although the speed limit was 25 miles per hour, the Saturn accelerated to over 50 miles per hour, crossing double yellow lines, running a stop sign, and driving on the wrong side of the road to pass other vehicles. As the driver reached the top of the hill, he turned right, running another stop sign near a university campus.
The vehicle continued through another stop sign and almost entered a parking lot, but instead came to an abrupt stop and made a sharp left turn, causing Officer Cavataio to hit his brakes to come to a complete stop to prevent hitting the Saturn, which was now perpendicular to the patrol vehicle. At this point, Officer Cavataio was able to see the driver of the vehicle.
As the pursuit was ongoing, Officer Burger notified CHP dispatch they were in a failure to yield situation. She reported that they were pursuing a silver Saturn Ion with a solo occupant, described as a "Black male adult."
The CHP officers continued to pursue the Saturn as it proceeded up a side road on campus. The road came to a dead end between two campus buildings, but the Saturn continued off-road, driving onto the sidewalk between the buildings. The officers decided that continuing to follow the Saturn would pose too much risk to public safety on the active campus and discontinued pursuit, losing sight of the Saturn.
The officers returned to the CHP office. On the way, they requested the CHP dispatcher to run the Saturn's registration and learned that Shipley was the vehicle's registered owner; they also requested the dispatcher to run Shipley's driver's license. Back at the CHP office, the officers watched the MVARS video and used the driver's license information to pull Shipley's driver's license photo. Officer Cavataio inspected the photo and concluded that Shipley was the driver he saw in the pursuit.
Officer Burger, who wrote the officers' incident report, testified she believed a printout of that photo was submitted along with her report to her sergeant. However, the photo was not introduced as evidence at trial.
Around 4:15 a.m. on February 7, a third CHP officer performed a "mileage check" to trace the path of the pursuit from where it began to where it ended. At the end of the road where officers Cavataio and Burger had discontinued pursuit, the officer walked on foot down the corridor between the buildings and found the silver Saturn Ion abandoned, still running, with keys in the ignition, and the driver's side door open. There were several cell phones, a laptop, family photos, and tools in the vehicle. The officer called dispatch to determine if a stolen vehicle report had been made and was informed one had not. The officer did not check for fingerprints or DNA or take photographs; that job would be performed by an officer from the investigative unit if it was determined to be warranted. The officer arranged for the Saturn to be towed and placed a hold on it so that an individual claiming the vehicle from the tow lot would be required to speak with CHP before the vehicle was released.
2. Officer McBreaty's Investigation
On February 10, 2016, Officer McBreaty, a felony follow-up investigator with the CHP, learned that Shipley was trying to reclaim the Saturn from the tow yard. Officer McBreaty then contacted Officer Burger to obtain more information regarding the incident. Officer Burger informed him this was an evasion case and the driver of the Saturn had been positively identified by Officer Cavataio as the vehicle's registered owner (Shipley).
Officer McBreaty subsequently visited the vehicle at the tow lot, inspected it, and photographed its contents. Inside, he observed clothes, a laptop, several pieces of mail, a fast food beverage cup, a reusable beverage cup, and refuse on the floor including tissues and plastic gloves. He found papers inside the vehicle with Shipley's name on them, including a document from a medical center dated February 4, 2016. He saw no damage to the steering wheel or elsewhere to indicate auto theft. He believed that, had the vehicle been stolen, the laptop would have been taken or sold. Because it was not his impression the vehicle had been stolen and Shipley had been identified as the driver, Officer McBreaty concluded there was no reason to collect DNA or fingerprint evidence.
Officer McBreaty met with Shipley at the CHP office on February 16, 2016. He lifted the hold and released the vehicle to Shipley.
3. Charges Filed
In December 2016, the district attorney filed a felony complaint charging Shipley with evading a police officer with reckless driving, a felony (Veh. Code, § 2800.2, subd. (a), count 1), and driving when privilege was suspended or revoked, a misdemeanor (Veh. Code, § 14601.1, subd. (a), count 2).
4. Additional Pre-trial Investigation
Shortly before trial, at the request of the district attorney's office, Officer McBreaty accessed local law enforcement and insurance crime databases to determine whether a stolen vehicle report for the Saturn was filed around the time of the incident. No such report was found. The only report he found was the impound report for the vehicle.
An investigator from the district attorney's office measured the distance from where the vehicle had been abandoned to the address listed on Shipley's driver's license and registration as his home address; the investigator determined the vehicle had been left 1.4 miles from Shipley's home address, measured by foot. The investigator opined it would take someone about 27.5 minutes to walk that distance. He determined the driving distance was approximately 1.6 miles.
5. Trial Testimony
a. Officer Cavataio
Officer Cavataio testified he was "confident" that Shipley was driving the Saturn Ion. He acknowledged that the MVARS, which provided poor quality ("grainy") footage, could not corroborate his identification. Recalling the incident at the point where the Saturn suddenly turned left in front of him, he provided the following testimony:
"Q. Were you able to see the driver of the car?
A. Yes, ma'am.
Q. How clear is your view?
A. My view is very clear.
[¶] . . . [¶]
Q. And the driver, could you describe him for us?
A. It was a [B]lack male, balding. Short hair. Had some balding hair. Facial hair. Dark Skin.
Q. So when you come to the T did the driver look at you? Or what was your view, I guess?
A. The driver kind of turned his head a little bit. Didn't fully look at me, but kind of turned his head a little bit, kind of his head
towards me [sic] and then accelerated and pulled away from me."
Officer Cavataio also testified that he noticed the driver of the vehicle was short in stature:
Shipley's driver's license reflects that he is five feet, seven inches tall.
"When you look at him in the car you could see the driver is a short stature. He sinks lower. Not in a slouching position like we would see some people lean in their car back. Or, I'm sorry, lean their seat back where their seats are way back. This seat is somewhat up. But you could see the driver is of shorter stature because they are not sitting high on the seat. That's what I have noticed as well."
Officer Cavataio further testified that he identified Shipley from his driver's license photo the night of the incident:
"Q. When you pulled that picture I.D.[,] what did you think?
A. I looked at the picture and I recognized it to be the male who we were trying to stop.
Q. The driver of the Saturn?
A. Yes, ma'am.
Q. Do you see that same individual in court today?
A. I do [identifying the defendant]."
In response to questioning from defense counsel, Officer Cavataio testified:
"Q. So the driver did not actually look back at your vehicle?
A. He canted his head in my direction, but he did not physically turn his head all the way.
Q. So what you are saying is the driver actually tilted his head toward your vehicle; is that right?
A. That's correct.
Q. You were able to see the nose of the driver; is that correct?
A. That is correct.
Q. You were able to see just the left eye, both eyes, neither eyes?
A. Just pretty much from the center face over.
Q. So you were not able to see the right side of the person's face?
A. That is correct."
b. Shipley
Shipley testified at trial in his defense. He denied he was driving and denied he evaded the police. He stated that during February 2016, he was no longer living at the address listed on his driver's license and registration; rather, he had moved downtown, where he was living temporarily with his girlfriend. He was aware the registration on his vehicle had expired; after an accident involving the car in September or October 2015, he had run "into several road blocks . . . getting it inspected and . . . re-registered." He was not driving the vehicle at the time, only using it for storage. Because he had no other place to store the vehicle, it was parked on the street; his girlfriend would move it for him from time to time. He noticed the vehicle was missing from where it was previously parked downtown; he assumed it had been towed because of the expired registration. He called several tow companies before eventually locating the vehicle; the tow company directed him to CHP to get his vehicle released. Although the vehicle was ultimately released to Shipley, he was unable to pay the high fees associated with regaining possession and ended up losing the vehicle.
Shipley testified he had several spare keys for the Saturn—he kept keys in the wheel well and in the glove compartment of the vehicle, and his girlfriend also had keys to the Saturn.
Shipley testified he spoke with Officer McBreaty and another officer at the CHP offices. A recording of their conversation was played for the jury at trial. During their conversation, Shipley told Officer McBreaty his vehicle was last parked downtown near his girlfriend's home. He last saw the vehicle Saturday morning, February 6 (the morning of the incident). He thought the vehicle had been towed and called police and tow companies looking for it.
Officers informed Shipley the conversation was not being recorded; it was, however, recorded.
Shipley told the officers no one was supposed to go in the vehicle because he keeps all his personal property in it. He keeps spare keys inside the vehicle. His girlfriend also has keys to the vehicle. When asked, Shipley declined to disclose his girlfriend's name.
During his conversation with the officers, Shipley asked them if there was a problem with the vehicle and whether it was wrecked. When asked why he thought the vehicle was being held, Shipley stated he believed it was towed " 'cause of the—the tags or somethin', right?" Shipley explained to Officer McBreaty the registration had expired after the vehicle was in an accident, and since then, he was storing it on the street. When the officers explained what had happened to the vehicle, Shipley stated that no one had authority to drive it and someone must have had it "illegally."
c. Officer McBreaty
Officer McBreaty testified as the prosecution's rebuttal witness and discussed his conversation with Shipley on February 16. He felt Shipley was "guarded" and not "forthcoming" during their discussion because "he would not provide information about his girlfriend to help verify his claim of where he was and what he was doing or provide information about what had become of the vehicle."
6. Jury Instruction Regarding Eyewitness Identification
The court instructed the jury with CALCRIM No. 315, eyewitness identification, as follows:
"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 the 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 an 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 the identification?
Are the witness and the defendant of different races?
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 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." (Emphasis added).
7. Verdict, Sentence, and Appeal
A jury found Shipley guilty of evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a), count 1) and driving when privilege is suspended or revoked (Veh. Code, § 14601.1, subd. (a), count 2). Shipley admitted he had two strike priors. (Pen. Code, §§ 667, subd. (b)-(i) & 1170.12.) The court sentenced him to prison for five years. Shipley's sole contention on appeal is a claim of error relating to the portion of the eyewitness identification jury instruction regarding witness certainty.
DISCUSSION
1. Arguments Asserted on Appeal
Shipley contends the trial court committed reversible error when it instructed the jury that it could consider the certainty of the eyewitness (Officer Cavataio) who identified him as the driver of the Saturn. He contends that empirical studies since the 1970s establish conclusively that a witness's subjective feeling of certainty is an invalid indicator of the accuracy of the witness's identification; in fact, the accuracy of an identification at times is inversely related to the confidence with which it is made. Shipley points out that courts from other states, including Georgia, Massachusetts, and Kansas, have disapproved instructing the jury on the degree-of-certainty factor.
These out-of-state authorities are not binding on this court. (Episcopal Church Cases (2009) 45 Cal.4th 467, 490.)
Shipley contends the error amounts to federal constitutional error because it relates to the prosecution's burden of proving guilt beyond a reasonable doubt and because it renders the defendant unable to present a defense. As such, Shipley contends the error should be evaluated under the Chapman standard, such that the judgment should be reversed unless the prosecution proves beyond a reasonable doubt that the error was harmless.
Chapman v. California (1967) 386 U.S. 18, 24.
Shipley acknowledges that defense counsel neither objected to the instruction as given nor requested a modification, yet Shipley contends we should not conclude that his claim was forfeited. Citing People v. Castillo (1997) 16 Cal.4th 1009, 1015 and People v. Jackson (2016) 1 Cal.5th 269, 337, Shipley contends the trial court, having opted to instruct on eyewitness identification, had a duty to instruct correctly, and defense counsel had no duty to request a modification because that duty applies only if the instruction is legally correct as given.
Shipley alternatively argues that counsel was ineffective for failing to object or request a modification to the certainty instruction.
The Attorney General responds that Shipley forfeited any claim of error by failing to object or request a modification to the instructions, the jurors were properly instructed, and any error was harmless, whether assessed under the appropriate Watson standard or the Chapman standard, as urged by Shipley.
People v. Watson (1956) 46 Cal.2d 818, 836.
2. Binding Precedent
Established precedent holds the certainty instruction is not erroneous. Our Supreme Court has repeatedly evaluated and affirmed the instruction, even in the face of the scientific evidence that Shipley relies on to support his claim of error. Decades ago, our high court recognized that there is a "lack of correlation between the degree of confidence an eyewitness expresses in his identification and the accuracy of that identification. Numerous investigations of this phenomenon have been conducted: the majority of recent studies have found no statistically significant correlation between confidence and accuracy, and in a number of instances the correlation is negative—i.e., the more certain the witness, the more likely he is mistaken." (People v. McDonald (1984) 37 Cal.3d 351, 369, overruled on other grounds by People v. Mendoza (2000) 23 Cal.4th 896, 914.) McDonald acknowledged that "[t]he average juror . . . remains unaware of these findings: 'A number of researchers using a variety of methods have found that people intuitively believe that eyewitness confidence is a valid predictor of eyewitness accuracy.' " (Id. at p. 369.) McDonald concluded that expert testimony as to scientific and psychological evidence bearing on factors relevant to eyewitness identification may be appropriate in certain cases. (Ibid.)
In People v. Wright (1988) 45 Cal.3d 1126 (Wright), our Supreme Court held "that a proper instruction on eyewitness identification factors should focus the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence." (Id. at p. 1141.) Wright emphasized that "the listing of factors to be considered by the jury will sufficiently bring to the jury's attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. The instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness." (Id. at p. 1143, fn. omitted.) The Wright court specifically approved CALJIC No. 2.92, including its certainty factor, stating "CALJIC No. 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence." (Wright, at p. 1144; see also People v. Johnson (1992) 3 Cal.4th 1183, 1232 [rejecting a claim that the certainty instruction in CALJIC No. 2.92 would confuse the jury given uncontradicted expert testimony that a witness's confidence in an identification does not positively correlate with its accuracy; there was no error in instructing the jury on the certainty factor].)
CALJIC No. 2.92 includes the following language regarding certainty, which is comparable to the language in CALCRIM No. 315, at issue in the present case: "In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness's identification of the defendant, including, but not limited, to any of the following: [¶] . . . [¶] the extent to which the witness is either certain or uncertain of the identification . . . ."
Our Supreme Court recently rejected an argument nearly identical to Shipley's. In Sánchez, the defendant cited "scientific studies that conclude there is, at best, a weak correlation between witness certainty and accuracy" to argue "the court erred in instructing the jury it could consider the certainty factor." (People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez) [analyzing CALJIC No. 2.92].) After noting that defendant had forfeited this clam by failing to request a modification to the instructions, the Sánchez court concluded the trial court did not err in providing the certainty instruction, and there was no prejudice to defendant.
Unlike the present case, Sánchez involved both certain and uncertain witness identifications, and, as Shipley points out, the court indicated that "[a]ny reexamination of our previous holdings in light of developments in other jurisdictions should await a case involving only certain identifications." (Sánchez, supra, 63 Cal.4th at p. 462.) Shipley contends this is just such a case.
Justice Liu wrote a concurring opinion in Sánchez, noting that research has shown certainty of an identification " 'is not a good indicator of identification accuracy.' " (Sánchez, supra, 63 Cal.4th at p. 496 (conc. opn. of Liu, J.).) Justice Liu opined the certainty instruction should be reconsidered: "In light of developments in scientific research and recent case law, there is a substantial question whether it is proper for trial courts to instruct that witness certainty is a factor bearing on the accuracy of an identification that juries should consider." (Id. at p. 498 (conc. opn. of Liu, J.).) Justice Liu also urged the high court to reexamine the issue soon and emphasized it "deserves [the court's] careful attention." (Ibid.) --------
We decline Shipley's invitation to independently reexamine the California Supreme Court's prior holdings. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction."].) Because we are bound by our high court's precedent on these issues, we reject Shipley's arguments.
3. Forfeiture
In light of established precedent holding that an instruction concerning the certainty of an eyewitness's identification is proper, we reject Shipley's contention that counsel's failure to object or request modification does not amount to forfeiture. This contention is based on a faulty premise—that the instructions were legally erroneous—which we reject. (See Sánchez, supra, 63 Cal.4th at p. 461 ["If defendant had wanted the court to modify the [certainty] instruction, he should have requested it. The trial court has no sua sponte duty to do so."].)
4. No Error
We further conclude there was no error. Even though Sánchez involved both certain and uncertain identifications and was analyzed under CALJIC No. 2.92 rather than CALCRIM No. 315, the court's rationale from that case—and from the settled precedent discussed therein—still applies. The instruction here was presented in a neutral and nonargumentative manner; it instructs the jury that witness certainty is one of many factors to consider in evaluating the accuracy of the identification. (Sánchez, supra, 63 Cal.4th at p. 462.) The instruction does not "suggest that certainty equals accuracy." (Ibid.) Thus, there was no error.
5. No Prejudice
Even assuming the instruction was erroneous, we conclude that Shipley has not demonstrated prejudice. Aside from Officer Cavataio's "confident" identification, there was other evidence, including strong circumstantial evidence, presented in this case that supports the guilty verdict. It is undisputed that Shipley owned the vehicle that was involved in the evasion and that, after the pursuit, the vehicle was abandoned within a mile and a half of Shipley's home address (as listed on his driver's license and vehicle registration). Shipley never reported the vehicle as stolen, and there were no indications that the vehicle had been stolen: there were no signs of forced entry or damage to the ignition or steering column, and items of value, including Shipley's laptop computer, were left untouched in the vehicle. Papers with Shipley's name on it dated days before the incident were found in the vehicle, suggesting he had recently been in the vehicle. Under these facts, we conclude that it is not reasonably probable Shipley would have obtained a more favorable result had the court omitted the instruction on witness certainty. (See Sánchez, supra, 63 Cal.4th at p. 463; Wright, supra, 45 Cal.3d at p. 1144 [analyzing instructional error under the Watson standard].)
6. Counsel's Assistance Was Not Ineffective
Because we have found no error and no prejudice, we conclude that Shipley's ineffective assistance of counsel claim fails. (People v. Grimes (2016) 1 Cal.5th 698, 735 ["An attorney's performance is constitutionally deficient if (1) it falls below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant."]; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.)
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: BENKE, Acting P.J. DATO, J.