Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA320671 Bob S. Bowers, Jr., Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Randy Smith (appellant) of two counts of second degree robbery. (Pen. Code, § 211.) The trial court found appellant had suffered two prior convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), three prison priors (§ 667.5, subd. (b)), and two convictions for serious felonies (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced appellant to a term of 35 years to life. The sentence consisted of 25 years to life in count 1, a concurrent term of 25 years to life in count 2, and 10 years for the two serious felony enhancements (§ 667, subd. (a)(1)). The trial court struck the prison-prior enhancements.
Appellant appeals on the grounds that: (1) the prosecutor committed misconduct by suggesting that defense counsel intentionally dressed like appellant to confuse the testifying victim; (2) the trial court committed federal constitutional error by allowing the 911 recording to be introduced into evidence where the victim on the recording was unavailable at trial; (3) the trial court erred in allowing the prosecutor to impeach appellant’s wife with an allegation that she drove with a suspended license; and (4) the trial court erred by instructing the jury with CALJIC No. 2.92 that a witness’s level of confidence in his or her identification is a factor to consider in assessing the accuracy of the identification. We affirm.
FACTS
Prosecution Evidence
As mandated by the traditional rule governing appellate review, we recite the evidence in the light most favorable to the judgment. (See, e.g., People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) On March 2, 2007, at approximately 2:00 p.m., Cecilia A. (Cecilia), Erika D. (Erika), and Erika’s sister, Alondra, were walking home from school on Exposition Boulevard when a man approached them and asked Erika if she had a cell phone. The man was later identified as appellant. Erika said she did not have a cell phone. Appellant grabbed Erika’s necklace and pulled it off her neck. Appellant asked her if she had anything else, and she said she did not. Erika was frightened, and Alondra ran away. Appellant asked Cecilia if she had anything. Cecilia said “no” and held up her hands. Appellant told Cecilia to remove her rings. Erika saw that Cecilia looked scared. Appellant told Cecilia to hurry or he would hit her in the face. When appellant asked Cecilia if she had anything else, Cecilia gave him $10 from her pocket.
Appellant told the girls to walk away and not to turn around. He put his hand inside his shirt as if he had a gun. As she left the scene, Erika turned and saw appellant get into a gray car and drive off.
Michael Manzo was driving on Exposition Boulevard when he saw a Black man standing with two young girls. Manzo thought that something was wrong because the girls were backing away. After Manzo drove around the block and came back to the spot, he saw the girls walking away, and he saw the man get into a car and drive off. Manzo followed the car and obtained the license plate number. When appellant went through a red light, Manzo drove back to the girls and gave them the license plate number.
Erika and Cecilia walked to Erika’s home, and Cecilia called 911. Erika later described the robber to police as a Black male with black hair and brown eyes. He was approximately 5 feet 10 inches in height and weighed approximately 190 pounds. He seemed to be about 40 years old. Police found that the license plate number belonged to a 1994 Chevrolet Corsica sedan registered to appellant.
Four days after the robbery, Erika identified appellant as the robber in a photographic lineup. Appellant was subsequently arrested at his home, which was one-half mile from the robbery scene. The gray car was parked across the street.
Defense Evidence
According to appellant’s father, Emmitt Smith (Emmitt), appellant worked in the family store on March 2, 2007, the day of the robbery. Appellant’s wife dropped him off. Emmitt left the store at 11:30 a.m., and when he returned at 3:00, appellant was still there. Appellant’s wife and stepdaughter were in the car outside. Emmitt no longer had the store’s surveillance tape from that day.
Guadalupe Pena, an employee at the store, saw appellant at work between noon and 3:00 p.m. on the day of the robbery. Appellant’s brother, Freddie Smith (Freddie), testified that appellant did not leave the store that day during working hours. Appellant left at 2:45 p.m.
Appellant’s wife, Jenny Benavides (Benavides), said that she picked up appellant on March 2 between 2:40 and 3:00 p.m. in her 2002 Chevrolet Impala. Because it was her daughter’s birthday, appellant, Benavides, and her daughter took pictures inside the store, and the pictures bore the time stamp of 2:48 p.m. When they all returned home from the store, appellant left with the children. While he was gone, at approximately 4:00 p.m., the man to whom Benavides had sold the 1994 Corsica on February 27, 2007, came back with the car and demanded his money back. His name was Paul Edwards. The sale had not been reported to the Department of Motor Vehicles (DMV), and Benavides no longer had the bill of sale.
Freddie told an investigator in August 2007 that Benavides picked up appellant at the store in the Corsica on March 2, 2007. At trial, Freddie said he had been mistaken.
Appellant called Dr. Mitchell Eisen as an expert in witness identification. Dr. Eisen stated that there is no significant relationship between witness confidence and witness accuracy. He had no opinion regarding the accuracy of the witness identification in this case.
DISCUSSION
I. Prosecutorial Misconduct
A. Appellant’s Argument
Appellant contends the prosecutor committed misconduct by suggesting that defense counsel dressed like appellant to confuse Erika, who identified defense counsel as the robber at trial.
B. Proceedings Below
When the prosecutor asked Erika if she saw the robber in the courtroom, Erika identified defense counsel by naming the person wearing gray with a blue shirt. The prosecutor later questioned the investigating officer, Detective Sean Hansen, and asked him to describe what appellant was wearing and where he was located in the courtroom. Detective Hansen replied, “He is located to my right, wearing the same suit as counsel.” Defense counsel interjected, “Just for the record, your honor, I would like to state this is not the same suit nor the same color.” The prosecutor asked the detective to describe the difference between counsel’s clothing and appellant’s. Detective Hansen stated that appellant was wearing a white shirt with a blue tie. On cross-examination, defense counsel elicited that Detective Hansen believed both suits to be dark green, but only appellant’s suit was double-breasted.
During closing argument, the prosecutor stated that many facts in the case defied explanation as mere coincidence. The prosecutor recited a litany of these facts, concluding with “And it’s just a coincidence, too that the video of the surveillance camera erased and it’s also a coincidence I suppose that counsel for the defendant were almost dressed alike that day. That is a coincidence, too.” Defense counsel objected and stated at sidebar that the prosecutor’s argument constituted misconduct by suggesting counsel was part of a conspiracy to hide something. The trial court agreed and admonished the jury as follows: “Ladies and Gentlemen, the suggestion that the attorney would be a part of some enterprise to confuse the triers of fact in the matter was inappropriate. And the portion of that argument is ordered stricken, and you will treat that as though you had never heard it.”
C. Relevant Authority
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A prosecutor commits misconduct by casting aspersions on defense counsel or attacking the integrity of defense counsel. (People v. Hill (1998) 17 Cal.4th 800, 832.)
D. Any Misconduct Harmless
Although the prosecutor’s remark implying that it was not a coincidence that defense counsel and appellant were similarly dressed was improper, the trial court promptly admonished the jury to disregard the comment. Therefore, appellant suffered no prejudice.
The prosecutor’s comment was far less serious than that of the prosecutor in People v. Jones (1997) 15 Cal.4th 119, where the prosecutor “accuse[d] opposing counsel of lying to the jury” and stated that “defense counsel’s credibility was damaged because he was not candid with the jury.” (Id. at p. 168, overruled on another point in People v. Hill, supra, 17 Cal.4th at p. 823.) Because the trial court in that case sustained the defendant’s objections and instructed the jury to disregard the comments, the defendant was not prejudiced. (Ibid.) We reach the same conclusion here and assume that the jury members followed the trial court’s instructions to treat the remark as if they had never heard it. (Ibid.; see also People v. Riggs (2008) 44 Cal.4th 248, 320; People v. Mendoza (2007) 42 Cal.4th 686, 701.) In addition, the trial court instructed the jurors before and after the presentation of evidence that the attorneys’ statements are not evidence. (CALJIC No. 1.02.) Appellant suffered no prejudice from the prosecutor’s isolated comment, which did not constitute an egregious pattern of conduct or a reprehensible method of persuasion, and reversal is not required. (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
II. Admission of 911 Call
A. Appellant’s Argument
Appellant contends the trial court erred in admitting Cecilia’s 911 call because she did not testify and the call included testimonial statements. Therefore, appellant was deprived of his constitutional right to confront a witness against him.
B. Proceedings Below
Before trial, the prosecutor proposed introducing the 911 recording made by Cecilia. Her voice would help substantiate that the robbery was accomplished by either force or fear. Cecilia was unavailable because her whereabouts were unknown. Defense counsel objected on the ground that he would not have the opportunity to cross-examine Cecilia.
After listening to the recording, the trial court ruled that it would allow the jury to hear certain lines of the transcript. The trial court ruled that only those portions were insightful regarding the victim’s state of mind regarding force and fear. The permitted portion was played for the jury, and the recording and transcript were admitted into evidence.
In the call, the operator asks Cecilia to tell her what happened. Cecilia says, “We were coming like me and my two cousins... and a guy just comes up to us and asks us for a phone and we just, and then he just started, he just ripped my cousin’s necklace off... and he just started telling me...” The operator interjects, “He took the necklace off her neck?” Cecilia replies, “Yeah, and he was like, he was like, pushing her, like if he wanted to do something to her, and then...” The operator asks, “Did he take her necklace with him?” Cecilia replies, “Yeah, and he told me to give him my rings and I gave them to him and... he acted like he had a weapon.”
C. Relevant Authority
The confrontation clause of the Sixth Amendment of the United States Constitution provides that “‘[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’” (Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).) The confrontation clause has traditionally barred “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination.” (Id. at pp. 53–54.) “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822 (Davis).) “The [Confrontation] Clause... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford, supra, at pp. 59–60, fn. 9; see also People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
D. No Confrontation Clause Violation
Assuming that the contents of the 911 call constituted hearsay, we conclude that introduction of Cecilia’s 911 call did not violate appellant’s right to confront witnesses, since Cecilia’s statements were nontestimonial. “A 911 call,... and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” (Davis, supra, 547 U.S. at p. 827.) Viewed objectively, the circumstances of the 911 call in this case show that, although the victims were no longer in a dangerous situation, the primary purpose in making the call was to summon police assistance.
In People v. Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court derived several basic principles from Davis: “First,... the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Cage, supra, at p. 984.)
Applying these principles to the instant case, it is clear that Cecilia’s statements were nontestimonial. Although the girls were no longer in immediate danger, Erika’s testimony made clear that the girls went directly home after appellant told them to walk away and that Cecilia made the call as soon as they arrived home. She therefore made the 911 call at the first opportunity, and the recording reveals the agitation in her voice. The 911 operator merely listened to Cecilia—asking no questions until the end of the portion played to the jury. The operator asked if the perpetrator took the necklace off, and if he took the necklace with him. Objectively viewed, these questions had the sole purpose of determining if police assistance was called for. There was none of the “formality and solemnity” characteristic of testimony given at trial. We believe the statements here were not given for a testimonial purpose, and it would be an overly broad application of the concept of testimonial statements to classify them as such. (See Cage, supra, 40 Cal.4th at p. 984, fn. 14 [“the proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial,” but on whether statements were “made with some formality” and “for the primary purpose of establishing or proving facts for possible use in a criminal trial”].)
Moreover, the portion of the 911 call that the jury heard was introduced for a nonhearsay purpose and was therefore not testimonial in nature. A statement that does not declare a mental state but is merely circumstantial evidence of that state of mind is not hearsay, since it is not received for the truth of the matter stated. Rather, whether the statement is true or not, the fact that the statement was made is relevant to determination of the declarant’s state of mind when such state of mind is at issue. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.) When evidence is adduced to demonstrate the state of mind of a particular person, it does not run afoul of the hearsay rule, for “‘“no assertive or testimonial use is sought to be made of it.”’” (People v. Duran (1976) 16 Cal.3d 282, 295.) The audiotape of that call shows that Cecilia was still upset when she made her call. Therefore, the recording clearly served its purpose of demonstrating Cecilia’s state of mind and was relevant to the element of fear required for the robbery that occurred in this case. (See, e.g., People v. White (1980) 101 Cal.App.3d 161, 170.) Any statement admitted for some purpose “other than establishing the truth of the matter asserted” is admissible under the Sixth Amendment. (Crawford, supra, 541 U.S. at pp. 59–60, fn. 9.)
Furthermore, appellant suffered no prejudice from admission of the 911 call under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) In her statements, Cecilia did not provide any identification of appellant, and her words served only to confirm that a robbery occurred. Cecilia’s statements, even if believed by the jury, played no part in enhancing the evidence showing that appellant was indeed the robber.
III. Impeachment of Benavides with Suspended License
A. Appellant’s Argument
Appellant contends the trial court prejudicially erred in allowing the prosecutor to impeach Benavides with evidence of a certified document showing her driver’s license was suspended at the time of the robbery. Appellant asserts that driving with a suspended license is a misdemeanor under Vehicle Code section 14601.1, and the trial court did not find it was a crime of moral turpitude. By presenting this evidence, the prosecutor attacked the credibility of the only witness who could state that appellant did not have access to the Corsica at the time of the robberies because it had been sold. It is therefore reasonably probable appellant would have had a more favorable result absent the error.
B. Relevant Authority
The trial court has broad discretion to admit or exclude impeachment evidence. (See People v. Gurule (2002) 28 Cal.4th 557, 619.) Its discretion will not be disturbed, unless there is a “showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)
A trial court may, in its discretion, admit evidence of past criminal conduct amounting to a misdemeanor where it has some logical bearing upon the honesty and veracity of the witness, and where its probative value outweighs any potential for prejudice, confusion, or undue consumption of time. (Evid. Code, §§ 352, 780, subd. (e); see Cal. Const., art. I, § 28, subd. (d); People v. Wheeler (1992) 4 Cal.4th 284, 295–296 (Wheeler), superseded in part by statute as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460.) The fact of such a conviction remains inadmissible under traditional hearsay rules. (Wheeler, supra, at p. 294; but see People v. Duran, supra, 97 Cal.App.4th at p. 1459 [certified conviction record admissible under Evid. Code, § 452.5].) The California Supreme Court seems to have recently reaffirmed this view by stating that “[m]isdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court’s exercise of discretion.” (People v. Chatman (2006) 38 Cal.4th 344, 373.)
It is well settled that “[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of... the improper admission or rejection of evidence,... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs only when it appears that a result more favorable to appellant would have been reached in the absence of the error. (Watson, supra, 46 Cal.2d at p. 836; see also People v. Rodriguez, supra, 20 Cal.4th at pp. 9–10.)
Evidence Code section 780 provides in pertinent part that: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] (i) The existence or nonexistence of any fact testified to by him;...”
C. Proceedings Below
On direct examination, Benavides testified that she drove appellant to work every day at 7:00 a.m. because he was not “driving at that time.” She picked him up between 2:40 and 3:00 p.m. She said on cross-examination that she drove appellant to work on a regular basis, and appellant did not drive to work because he was not allowed to do so, since his license had been suspended. Benavides acknowledged that “you can get in trouble for driving on a suspended license,” and “so [she was] driving.” The prosecutor asked, “Isn’t it true... in fact your license was also suspended March 2, 2007?” Benavides replied, “No, not that I know of.”
The prosecutor then sought to introduce a certified printout from the California Law Enforcement Telecommunications System (CLETS), which showed Benavides’s driving record. The CLETS printout revealed that Benavides was served a notice on February 27, 2006, that her driver’s license was suspended effective March 3, 2006. The printout showed that the license was reinstated on July 9, 2007. A sidebar was held, and defense counsel objected. The trial court ruled that the prosecutor could use the document. When shown the document, Benavides repeated that she was never aware that her license was suspended.
D. Evidence Properly Admitted
The People argue that appellant objected only on foundational grounds and has therefore forfeited the claim that the evidence constituted improper impeachment. Appellant counters that he also objected on relevancy grounds, which was sufficient because Wheeler’s requirement of moral turpitude is a relevance requirement. (Wheeler, supra, 4 Cal.4th at p. 296.) Appellant did object on relevance grounds, arguing that the evidence of Benavides’s suspension was not relevant unless she was aware of it. This is not the argument he makes now. An evidentiary objection must be specific, and appellant’s objection was not appropriately specific. (Evid. Code, § 353, subd. (a); People v. Holt (1997) 15 Cal.4th 619, 666.) Although appellant thereby forfeited the issue he now raises on appeal, we address the correctness of the trial court’s ruling to preclude any inference of ineffective assistance of counsel.
We conclude the evidence of Benavides’s suspended license was admissible to impeach her credibility. It was not admitted as evidence of a prior misdemeanor conviction or misdemeanor conduct to attack Benavides’s credibility generally, however. Rather, the evidence was relevant and admissible under Evidence Code section 780, subdivision (i).
Pursuant to Evidence Code section 780, subdivision (i), a trial court may admit otherwise inadmissible evidence for impeachment purposes to prove or disprove the existence or nonexistence of a fact about which a witness has testified or opened the door. (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946 [“[A] witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony”]; Leader v. State of California (1986) 182 Cal.App.3d 1079, 1089–1092; see also People v. Cooks (1983) 141 Cal.App.3d 224, 324–325; People v. Reyes (1976) 62 Cal.App.3d 53, 61–62.) The open-the-door rule prevents witnesses from misleading the jury or misrepresenting facts. (People v. Robinson (1997) 53 Cal.App.4th 270, 282–283.)
In People v. Cooks, supra, 141 Cal.App.3d 224, for example, on cross-examination by an attorney for one of the four defendants, a codefendant testified that he never received a gun from a witness, and he had never owned or possessed a gun. On cross-examination by the prosecutor, the same codefendant again denied ever possessing a gun. The prosecutor then asked him: “‘Is it not a fact... that in January of 1971 you pled guilty to possessing a stolen handgun in Sutter County?’” (Id. at p. 324.) On appeal, another defendant claimed that “the trial court erred in allowing the prosecutor to impeach [the codefendant’s] credibility with evidence of a prior misdemeanor conviction.” (Id. at p. 324.) The Court of Appeal disagreed and determined that the prosecutor’s cross-examination was proper because it was offered to contradict the codefendant’s prior testimony that he never possessed a gun and not to prove he possessed the character trait of dishonesty. (Ibid.)
In this case, on direct and cross-examination, Benavides said that appellant was not driving because his license was suspended, and this obliged her to take him everywhere. This testimony led to the inference that appellant could not have been driving the gray Corsica at the time of the robbery. By impliedly asserting that she, unlike appellant, was legally authorized to drive, and for that reason she always acted as his driver, Benavides opened the door to cross-examination about the status of her license at the time of the robberies. Pursuant to People v. Cooks, supra, 141 Cal.App.3d 224, it was not improper for the prosecutor to cross-examine Benavides about her license suspension and to show her the document attesting to the notice of her suspension and the fact that the notice was not returned unclaimed after she denied knowing that her license was ever suspended. Thus, the admission of the license suspension prevented Benavides from misleading the jury or misrepresenting the facts about her acting as the sole driver in the family because she and appellant adhered to the Vehicle Code. The evidence had a “tendency in reason to prove or disprove the truthfulness of [her] testimony at the hearing,” by establishing the “nonexistence of [a] fact testified to by [her].” (Evid. Code, § 780, subd. (i); People v. Rodriguez, supra, 20 Cal.4th at p. 9 [“always relevant for impeachment purposes are the witness’s capacity to observe and the existence or nonexistence of any fact testified to by a witness”].) The trial court did not abuse its discretion.
Moreover, the impeachment of Benavides with her suspended license clearly did not prejudice appellant. It is true, as appellant asserts, that Benavides was the only witness who could testify that appellant did not have access to the Corsica at the time of the robberies because it had been sold. On the other hand, Benavides’s testimony regarding the sale of the car was less than credible. She claimed that the car was not even drivable, but the buyer drove it away and back. She said she wrote a bill of sale but did not keep it, and she offered to write it out again. Benavides testified that she sold the car to a gentleman named Paul Edwards. It appears from the record, however, that on cross-examination, Benavides said the man’s last name was Pollard. The sale was not reported to the DMV, even though the car was registered in appellant’s name, and Benavides kept no record of the buyer’s address, telephone number, date of birth, or place where the buyer could be contacted.
The court reporter may have misreported Benavides’s response although Benavides did not correct the prosecutor when he referred to the buyer as “Mr. Pollard.”
The fact that Manzo, who had no motive to lie, copied the license number of the gray Corsica as it drove away from the robbery scene combined with Erika’s identification of appellant’s photograph four days after the robbery was stronger evidence than Benavides’s unsubstantiated story of the sale. The jury also heard evidence that Freddie told an investigator Benavides was driving the Corsica on the day of the robbery, and appellant had remarked that it ran better than the Impala. We believe that the totality of the evidence, rather than the mention of Benavides’s suspended license, was the deciding factor in the jury’s estimation of the credibility of Benavides’s version of events. No miscarriage of justice occurred as a result of admission of Benavides’s driving record, and it does not appear that a result more favorable to appellant would have been reached in the absence of this evidence. (Cal. Const., art. VI, § 13; Watson, supra,46 Cal.2d at p. 836.)
IV. Reading of CALJIC No. 2.92
A. Appellant’s Argument
Appellant contends that the trial court prejudicially erred when it read CALJIC No. 2.92, which instructs the jury on how to determine the weight to be given eyewitness identification testimony. The trial court read the portion that tells the jury it can consider “the extent to which the witness is either certain or uncertain of the identification...” According to appellant, this factor was contradicted by expert testimony, is not in accord with the understanding of experts in the field, and it lightened the State’s burden of proof.
B. No Error
Appellant has forfeited this issue on appeal, having failed to object to the trial court’s reading of CALJIC No. 2.92. (People v. Farnam (2002) 28 Cal.4th 107, 165.) In any event, appellant’s claim is without merit.
The California Supreme Court approved CALJIC No. 2.92. (People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright).) “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.” (Ibid.) The Supreme Court explained 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. It should list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative.” (Id. at p. 1143, fn. omitted.)
The Supreme Court subsequently rejected the argument that a trial court errs when instructing the jury that the certainty of a witness is a factor to consider in assessing eyewitness testimony. (People v. Johnson (1992) 3 Cal.4th 1183, 1231–1232.) The court has also rejected the notion that a trial court was obligated to modify CALJIC No. 2.92 sua sponte regarding a witness’s level of certainty. (People v. Ward (2005) 36 Cal.4th 186, 213–214.) In People v. Sullivan (2007) 151 Cal.App.4th 524, 561, the defendant argued that the trial court erred by failing to delete sua sponte the certainty factor from CALJIC No. 2.92. Relying on Wright’s reasoning and its express approval of CALJIC No. 2.92, the court rejected the contention that CALJIC No. 2.92 violated defendant’s “‘right to due process, because it reinforced a pervasive misconception and lightened the prosecution’s burden of proof.’” (People v. Sullivan, supra, at pp. 561–562.)
The instruction makes clear that the certainty expressed by an eyewitness in the past or at trial is only one of many factors the jury is told to consider. In this case, Erika failed to identify appellant in court and identified his counsel instead. Appellant called an expert witness who explained the pitfalls of the certainty factor according to appellant’s point of view. Defense counsel argued extensively regarding Erika’s in-court misidentification. Thus, the jury would clearly weigh any certainty Erika demonstrated in the past against her failure to identify appellant in court, and the instruction could actually work in appellant’s favor. Accordingly, appellant suffered no prejudice.
Under the facts of this case, it is not reasonably probable that if the instruction had been modified to omit the “certainty” factor, appellant would have obtained a more favorable verdict. (People v. Carter (2003) 30 Cal.4th 1166, 1221; Watson, supra, 46 Cal.2d at p. 836.) Consequently, his claim of instructional error must fail.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.