Opinion
B161292.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES WILLIAMS, Defendant and Appellant.
Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Kim Aarons, Deputy Attorney General, for Plaintiff and Respondent.
James Williams appeals from the judgment entered following a jury trial in which he was convicted of three counts of residential robbery, with findings that a principal was armed in the commission of the offenses. Defendant contends that the trial court prejudicially erred in admitting evidence of a threat to the victims, instructing on eyewitness identification, and providing the jury with a magnifying glass during deliberations. We affirm.
BACKGROUND
About 8 p.m. on November 9, 1999, Cheryl M. (Cheryl) and her nine-year-old daughter, G., left their house in south central Los Angeles, on their way to a restaurant for dinner. As they reached the back gate, four to six young men, one of whom was later identified as defendant, told Cheryl and G. to return to the house. Cheryl and G. went back inside, where Cheryls uncle, Oscar A. (Oscar), was watching television. The assailants, at least one of whom had a gun, stated that they knew there was a safe in the house and demanded to know where the money was kept. Cheryl insisted that there was no safe and that she had no money.
The men ordered Cheryl and G. into a bedroom. G. was told to get on the bed and put the covers over her head. Cheryl was bound with shoe laces and duct tape while lying facedown on the floor. In the living room, Oscar was bound with duct tape and placed on the floor.
At one point, defendant came into the bedroom and threatened that he would kill Oscar if Cheryl did not tell him where the money was. Defendant then went into the bedroom closet, where there was a door to an attic. Also in the bedroom, one of the men threatened to commit sodomy upon Cheryl if she did not tell him where the money was. Cheryl repeated that there was no money. The man removed Cheryls pants and sexually assaulted Cheryl.
The men ultimately left. Upon their departure, it was discovered that the house had been ransacked and property belonging to Cheryl, G., and Oscar, including clothing, electronic equipment, and jewelry, had been taken. Cheryls car was also missing. The police were called at 9:10 p.m. and arrived at the house ten minutes later. Officers were given a description of the robbers and told of the stolen property, including Cheryls car.
At 10:30 p.m., an officer on patrol saw a car parked on the sidewalk near Figueroa and 101st Street and ran a warrant check. The officer received information that the car had been taken in an armed robbery. Three men and two women got into the car, with defendant in the drivers seat. Defendant made eye contact with the officer and drove off. He did not stop when the officer activated his lights. The car stopped after hitting a center median. Defendant crawled out of the drivers side window (the car had a feature that prevented the door from being opened while the engine was running) and fled on foot. Following a chase, defendant was apprehended.
While being booked early the next morning, defendant handed a bracelet he had been wearing to an officer and said, "Give the bracelet to my girlfriend because I did a very bad thing last night and Im going away for a very long time." Defendant was also wearing a gold necklace that was booked into evidence. Cheryl later identified it as one belonging to G. that had been taken in the robbery.
The day after the incident, officers showed a six-pack photographic lineup that contained a photo of defendant to Cheryl, G., and Oscar. None could make an identification. In March 2000, the three victims attended a live lineup, which included defendant. The participants in the lineup were told to state phrases that had been said during the robbery. G. identified defendant, writing, "Im not a hundred percent sure but he looks like the same man." Five days later G. again identified defendant, this time from a single photograph shown to her by an officer. G. subsequently identified defendant in court. Cheryl and Oscar were not able to make any identifications.
Investigation of the incident also yielded a piece of paper from the bedroom closet that had a partial shoe print on it, as well as footprints in soil near the back door of the house from what appeared to be the same shoe. A criminalist compared the print and impressions taken from the soil with the shoes defendant was wearing at the time of arrest. The shoe prints and impressions matched the soles of defendants shoes, including the "accidental characteristic" of an "actual hole" on the heel of one of the shoes.
Some time after the incident, Cheryl received a letter containing threats against her and her family if they testified against defendant. The letter also stated that the author knew where G. went to school.
In defense, a photograph of defendant taken before his arrest was introduced into evidence. It depicted defendant wearing a necklace that, according to the defense, was the same one he was wearing when arrested that was claimed to be G.s. A memory expert testified that information is remembered best closest to the event. The stress of being a crime victim, especially when a gun is present, can also adversely affect memory. The phenomenon of "unconscious transference" may occur when a crime victim substitutes a face seen at some point with a face being identified as having taken part in the crime, because of the prior familiarity with the face from another context. A witnesss confidence in the accuracy of an eyewitness identification is not a reliable indicator of the accuracy of that identification.
Defendant argued to the jury that G.s identification of him was inaccurate in that it emanated from the unconscious transference of her having initially seen, but not identified, his photo from the six-pack and later recognizing him at the live lineup based on the six-pack photo. Defendant further attacked G.s credibility based on inaccurate testimony she had given at trial to the effect that Cheryl had been placed in handcuffs (rather than shoe laces and duct tape) and that G. had selected defendants photograph from the six-pack lineup (when she had not). Defendant asserted that the necklace he was wearing when arrested did not belong to G., and noted that other than the necklace no claimed fruit of the robbery was found in Cheryls car or on its occupants and that his possession of the car after the robbery had been completed did not establish that he participated in the robbery. Defendant further noted that he was on parole at the time of the incident and argued that his flight and his statement to the police about having done a bad thing were based on his being a parolee in possession of a stolen car. Defendant also argued that the shoe print evidence was unreliable, and alternatively that at most it proved that he was present at the scene, not that he sodomized Cheryl. In addition, defendant pointed to various inconsistencies in the descriptions of the men who invaded the home to refute allegations that he was the one who was personally armed and committed the sodomy and argued that upon the initial encounter with the men G. voluntarily went back into the house and therefore no kidnapping occurred.
At trial, defendant was found not guilty of kidnapping for the purpose of robbery and forcible sodomy, and allegations that defendant personally used a firearm were found not true.
DISCUSSION
1. Evidence of Threats
This was defendants second trial, the first ending in a hung jury. (There were two codefendants at the first trial, neither of whom was joined at the second.) At the beginning of the third day of the second trial the prosecutor stated: "I wanted to inform the court that I have a change of plan for today that was completely unexpected. . . . I was planning, of course, on starting with Cheryl and [G.] today. My detective called me last night and indicated to me that Cheryl, because of a death threat she had received [three months ago] — between the last trial and this trial, was now re-thinking her position as to whether or not she was going to testify. This morning she indicated flat out she was not going to, and yet the detective went over to where she works and is currently talking with her and [G.] to see if they will in fact come in. They are, frankly, terrified. [¶] . . . [¶] At this time I have no direct evidence to say that the defendant himself had anything to do with the threat, but as of right now it may or may not have had the desired effect."
Cheryl and G. appeared in court later that day and a hearing was conducted pursuant to Evidence Code section 402. Before testimony was taken, the court and counsel discussed People v. Olguin (1994) 31 Cal.App.4th 1355, which holds that evidence of anonymous threats to a witness and the witnesss fear of retaliation may be admitted as relevant to a witnesss credibility. Defendant stated that there had never been any question of Cheryls credibility. The trial court responded: "No, the jurors are different from you. [Cheryl] may look a little jumpy in front of the jury and the jury may think well, shes lying, or they may think shes afraid. They may think a lot of things. But this is only admitted to show it may have an impact on the credibility or the testimony of these witnesses."
At the Evidence Code section 402 hearing, Cheryl testified that the letter made her afraid. She mentioned that it was mailed to an address that was not supposed to be public and therefore must have been acquired from court papers. Cheryl had talked about the letter with G. Next, G. took the stand and was asked if the letter had made her afraid. She said that it had not.
Defendant argued that evidence of the letter should not be admitted because G. had testified it had not made her fearful. Defendant did not argue the effect of the letter on Cheryl.
The court ruled that evidence of the letter would be admitted.
At trial, G. testified that she was made aware of the threatening letter. Asked if she was afraid to testify, G. responded, "Not really." The trial court then admonished the jury that "the issue of a threat to a witness is not to be attributed and is not to be held against [defendant]. The fact that a witness may have received what they perceived to be a threat is offered only to show how it may impact on the witnesss demeanor and their credibility while theyre testifying." Afterward, Cheryl testified that the threat scared her. A similar admonition was then given.
Defendant contends that the trial court abused its discretion in admitting evidence of the threat because "Cheryls credibility was not at issue, since she did not witness anything inculpatory regarding [defendant], and [G.] expressly stated during an Evidence Code section 402 hearing that the threat did not make her fearful." Defendant further contends that the trial court effectively substituted an inadequate limiting admonition in the place of careful Evidence Code section 352 analysis and that the substitution was especially inappropriate because the probative value of the evidence was not substantial. We disagree.
A "witnesss `demeanor while testifying and the manner in which [she] testifies may be relevant to credibility." (People v. Lewis (2001) 26 Cal.4th 334, 361, citing Evid. Code, § 780, subd. (a).) "`Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citations.] Testimony a witness is fearful of retaliation similarly relates to that witnesss credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witnesss fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.] [Citation.]" (People v. Olguin, supra, 31 Cal.App.4th at p. 1368.)
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "A trial courts exercise of discretion under Evidence Code section 352 will not be reversed unless it `exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (People v. Tran (1996) 47 Cal.App.4th 759, 771.) "In most instances the appellate courts will uphold the exercise of discretion even if another court might have ruled otherwise. [Citation.]" (People v. Feaster (2002) 102 Cal.App.4th 1084, 1092.)
Although defendant prevailed at trial on allegations that he personally used a firearm and sodomized Cheryl, the prosecutions attempt to prove these allegations was primarily founded on Cheryls testimony that this perpetrator spoke in the same manner as the one who went into the bedroom closet and left behind his shoe print, namely, defendant. Thus, Cheryls credibility on the question of the words spoken and tone assumed by the perpetrators was, albeit ultimately unsuccessful, a key element of the prosecutions case. Also hotly contested at trial was whether the perpetrator of the sexual assault had achieved penetration and was therefore guilty of a completed sodomy, rather than only attempted sodomy. As to this extremely sensitive factual question, Cheryls credibility was again at issue. Thus, irrespective of Cheryls admitted inability to identify defendants face, defendants contention that Cheryls credibility was not at issue must be rejected.
With respect to G., we also perceive no error. Before coming into court on the day they were questioned, Cheryl expressed a reluctance for herself and G., who was 11 years old at the time, to appear at trial. And Cheryl testified at the Evidence Code section 402 hearing that she was afraid. Thus, in the face of G.s bravado in telling the court that the threat had "[n]ot really" made her fearful, it was reasonable for the trial court to anticipate that G., as well as Cheryl, might appear (as the court stated earlier), "a little jumpy in front of the jury," or that the testimony of these two witnesses might be inconsistent with that they had given in the prior trial due to fear of retaliation.
Addressing the balancing process under Evidence Code section 352 and the adequacy of the limiting admonition, defendant asserts that "a logical inference will nearly always exist that when the threat to a prosecution witness was made for the benefit of the defendant, it was likely made by someone associated with the defendant. Even if the defendant did not authorize or know of the threat, the existence of the threat constitutes evidence of a defendants association with evil people."
But defendant has provided no authority to suggest the possibility that such an inference will be drawn is sufficient to counterbalance the probative value of evidence of threats in explaining a witnesss demeanor and assessing his or her credibility. And in this case a mere inference of association with evil would pale in comparison with the defendants being a parolee who possessed a stolen vehicle shortly after it had been taken.
More important, it has been said that in a situation where a witnesss fear is relevant, "omitting explanatory fear testimony would have grossly distorted the record." (People v. Williams (1997) 16 Cal.4th 153, 212.) The defendants interests may be protected by a limiting instruction, such as the admonition given here, explaining the proper purpose of the evidence. We presume the jury abided by this limitation. (People v. Waidla (2000) 22 Cal.4th 690, 725.) Thus, as in People v. Burgener (2003) 29 Cal.4th 833, 870, "[i]nasmuch as the jury was promptly and correctly instructed as to the limited purpose of the evidence [of threats], we cannot say that the trial court abused its discretion under Evidence Code section 352 in allowing [evidence of the threatening letter received by Cheryl]."
2. Instruction on Eyewitness Identification
The jury in this case was instructed on factors to consider in proving identity by eyewitness identification pursuant to CALJIC No. 2.92. Defendant objected to the portion of the instruction referencing "[t]he extent to which the witness is either certain or uncertain of the identification," arguing that it conflicted with the testimony of his expert that there was no relationship between certainty and accuracy of an identification. The objection was overruled. We hold properly so.
CALJIC No. 2.92 provides as follows:
"Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. 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 witnesss identification of the defendant, including, but not limited to, any of the following:
"[The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;]
"[The stress, if any, to which the witness was subjected at the time of the observation;]
"[The witnesss ability, following the observation, to provide a description of the perpetrator of the act;]
"[The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;]
"[The cross-racial [or ethnic] nature of the identification;]
"[The witnesss capacity to make an identification;]
"[Evidence relating to the witnesss ability to identify other alleged perpetrators of the criminal act;]
"[Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]
"[The period of time between the alleged criminal act and the witnesss identification;]
"[Whether the witness had prior contacts with the alleged perpetrator;]
"[The extent to which the witness is either certain or uncertain of the identification;]
"[Whether the witnesss identification is in fact the product of [his] [her] own recollection;]
"[_____________________________;] and
"Any other evidence relating to the witnesss ability to make an identification."
In People v. Johnson (1992) 3 Cal.4th 1183, 1231, the Supreme Court considered an identical argument that the "certainty of identification" portion of CALJIC No. 2.92 should not have been given because the defense eyewitness identification expert "testified without contradiction that a witnesss confidence in an identification does not positively correlate with its accuracy. As a corollary to this claim, [the defendant argued] the instruction was improper because it contradicted [the experts] testimony, thereby implying the jury could not rely on [the experts] evidence." The argument was rejected, partially on the basis that "the jury remained free to reject [the experts] testimony although it was uncontradicted. (People v. Wright [(1988)] 45 Cal.3d [1126] at pp. 1142—1143.) The trial court was not required—indeed, was not permitted—to instruct the jury to view the evidence through the lens of [the experts] theory." (People v. Johnson, supra, 3 Cal.4th at pp. 1231—1232.)
Defendant asserts that Johnson is distinguishable because the defendant there apparently did not object in the trial court and because he "does not believe that Johnsons analysis reached the problem presented in this case, and even if it did, [defendant] would then submit that Johnson is contrary to federal constitutional law." But defendant had not explained how the lack of objection in Johnson possibly affected the decision. And we cannot agree that the problem defined by defendant, that the "certainty of identification" portion of CALJIC No. 2.92 "would reasonably be understood as a substantive proposition," was left out of the Johnson analysis. Nor do we find any merit in the claim, which defendant notes he "is entitled to preserve . . . for federal review," that this portion of the instruction violates due process. Accordingly, defendants contention must be rejected in its entirety.
3. Providing Magnifying Glass to the Jury
During deliberations, the jury requested a magnifying glass. The court stated that it did not have one but did have "a small plastic item which comes with an eyeglass repair kit. Using it does not distort anything. It just doesnt magnify very well. But in an attempt to try to respond to the jurys request, how does the defense feel about the jury getting this?" Defendant objected on the ground that "the instructions do say theyre not supposed to be doing experiments or doing any other investigation . . . ." Defendants objection was overruled, the court stating, "I dont think its an experiment. And well send it in."
Contrary to defendants contention, the trial court did not err. In People v. Turner (1971) 22 Cal.App.3d 174, 179, during the course of deliberations, "over a defense objection, the jury used magnifying glasses to assist them" in comparing two photographs. The Turner court rejected the defendants contention that "use of the magnifying glasses constituted either new evidence or an experiment." (Id. at p. 182.) The court reasoned: "As stated in United States v. Beach, 296 F.2d 153 [] at pages 158—159: `"the mere making of a more critical examination of an exhibit than was made during the trial is not objectionable. For example, the use of a magnifying glass not introduced in evidence, without the knowledge and consent of the parties and without permission of the court, is not reversible error where such action involves merely a more critical examination of an exhibit." At most, the use of the magnifying glass involved an extension of the jurys sense of sight [citations]." (People v. Turner, supra, 22 Cal.App.3d at pp. 182—183.)
There is no indication in the instant case that the jurys request for a magnifying glass was for any purpose other than examining exhibits. Indeed, defendants suggestion that the jury likely wanted to inspect the pre-crime photograph of defendant wearing a necklace to compare the necklace with one he was wearing when arrested appears most reasonable. Defendant misplaces reliance on People v. Castro (1986) 184 Cal.App.3d 849, 852, in which a juror "`went home and used binoculars to see if a witness could have possibly seen what he . . . said he did," and then took the information back to jury deliberations the next day. In contrast to Castro, the examination here was done of an exhibit in the jury room with an implement provided by the court. Defendants claim of error must therefore be rejected.
DISPOSITION
The judgment is affirmed.
We concur: ORTEGA, Acting P. J., VOGEL (MIRIAM A.), J.