Filed 12/23/14 P. v. Reed CA2/6
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B252211
                                                                             (Super. Ct. No. BA391200)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.

ERIC STEFON REED,

     Defendant and Appellant.



                   Eric Stefon Reed appeals his conviction, by jury, of first degree murder
in the shooting death of Felton Glass. An expert witness testified at trial about the
psychological factors that influence eyewitness identifications. Appellant contends the
trial court erred when it failed to instruct the jury, sua sponte, that expert testimony is a
form of circumstantial evidence and that the interpretive principles governing the
evaluation of circumstantial evidence apply with equal force to the evaluation of an
expert witness' testimony. More specifically, appellant contends the trial court erred
because it did not sua sponte instruct the jury that, if the expert testimony supported
multiple reasonable inferences, one of which pointed to innocence and the other to
guilt, the jury was obligated to accept the inference pointing to innocence. We affirm.
                                                          Facts
                   Appellant and 13-year old Javon Sullivan were both members of the
"Western Loc Crips," a Los Angeles street gang. On November 21, members of the

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rival "Eight Trey Gangsters," shot at Sullivan as he was walking inside his own gang's
territory. Sullivan wanted revenge. The next morning, November 22, Sullivan
decided to go into Eight Trey Gangsters' territory to shoot one of them. Sullivan ran
into appellant, a fellow gang member, at a liquor store. Sullivan told appellant what he
wanted to do. Appellant agreed to go with him and lifted his shirt to show Sullivan the
gun he had in the waistband of his pants.
              Appellant and Sullivan walked to a bus stop inside the Eight Trey
territory, at the northwest corner of Western Avenue and Manchester Avenue, in Los
Angeles. From there, they saw the victim, Felton Glass, standing near a bus stop on
the opposite side of the street. Sullivan believed Glass was a member of Eight Trey
because of the way he walked and because he was inside the Eight Trey territory.
Appellant and Sullivan crossed the street. Appellant drew his gun and shot Glass
several times. Glass fell to the ground. Sullivan shot Glass after he was down. After
firing two shots, Sullivan ran away. One of the two guns used to shoot Glass was
found in Sullivan's pocket when he was arrested about ten minutes later. When police
officers first encountered Sullivan, he was using his cell phone to call appellant's cell
phone. Sullivan called appellant's phone four times in the 10 minutes after the
shooting occurred. Both phones were physically located within a few blocks of the
shooting when those calls were made.
              In the statements he later gave to police, and in his trial testimony,
Sullivan refused to identify appellant by name or appearance as his accomplice in the
shooting. He referred to his accomplice as "DJ," without using DJ's given name. At
the police station, however, Sullivan identified a photograph of appellant as DJ.
Sullivan retracted that identification at trial, explaining he had been mad at appellant
over a girl so he lied to implicate appellant in a murder.
              Appellant's stepfather, Thomas Butler, testified that appellant came
home between 9:00 and 10:00 a.m. on the day of the shooting. Although appellant
often wore his hair braided, on the day of the shooting it was unbraided and in a long,
unruly "afro." Appellant also had a mustache and goatee. He asked Butler to cut his

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hair, explaining that he couldn't find anyone to braid it. Butler used his clippers to cut
appellant's hair short. Appellant then changed his clothes and went to school.
              Appellant and Sullivan shot Glass at 7:55 a.m. on a Tuesday, near the
intersection of two busy streets in South Los Angeles. Consequently, many people
saw the shooting. Two eye witnesses, Reyna Hart and Barbara Lee, described one of
the shooters as having a long, unruly afro, that looked as if it had been braided but the
braids had been taken out. Luis Ontiveros told police the shooter had very short hair.
None of the witnesses described the shooter as having facial hair.
              Ms. Hart was pumping gas at a station located across the street from the
bus stop where the shooting took place. As she filled up her car, Hart looked out
toward the bus stop. She saw a man wearing a gray "hoodie" sweatshirt pull a gun and
shoot at another person who was waiting for the bus. Hart dropped to the ground and
heard two or three more shots. After a few seconds, she stood up and saw the shooter
fire another shot. He then ran south, down Western Avenue. As he ran, the hood fell
back, revealing his long afro. The day after the shooting, police showed Hart a six
photograph line up, with appellant's photograph appearing in position number four.
Hart told the officers she was about 80 percent certain the person in photograph
number two was the suspect. She stated it was "definitely not" any of the others. At
both the preliminary hearing and trial, Hart identified appellant as the shooter.
              Barbara Lee was waiting at a bus stop across the street from the site of
the shooting. Two teen aged males were standing nearby. Lee looked them up and
down, because she thought they shouldn't be going to school looking the way they did.
One of the young men wore sneakers with a black and white print, and a hoodie
sweatshirt. His hair looked like it had recently been unbraided. After several minutes,
the two young men ran across the street to the opposite bus stop. Lee heard three shots
fired. Then, she saw the "one with the hair" run down Western Avenue while his
companion ran up Manchester Avenue.
              Later that day, police showed Lee a six photograph line up. She first
told the officers that the shooter she saw was not in the lineup. Later, she circled

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appellant's photograph and wrote, "Photo Number four looks like the person I seen, but
the face is too fat." Lee testified that she looked the person in the hoodie straight in
the face and the person in photograph number four was not the person she had seen. In
court, she recognized appellant as the person from the photograph. She testified that
appellant was not the person she had seen at the bus stop. Lee also testified that a pair
of sneakers, found during a search of appellant's bedroom, looked like the sneakers
worn by the shooter.
              Luis Ontiveros was walking across a grocery store parking lot, looking
down Manchester Avenue when he saw two males approach a man at the bus stop.
Ontiverso heard three gun shots, ducked behind some cars and then heard more shots.
After the shooting stopped, Ontiveros looked up to see the two males running from the
scene. Within a few minutes, Ontiveros identified Sullivan as one of the males in a
field "show up." Five months after the shooting, at the preliminary hearing, Ontiveros
identified appellant as the shooter. He described the shooter as having "very short"
hair and no facial hair.
              Noya Abrego was driving her car, waiting to turn left from Western
Avenue to Manchester Avenue when the shooting occurred. Although she did not see
the shooting, she heard the shots. When she looked toward the bus stop, Abrego saw
one man with a gun in his hand for a second or two. Then, she saw him run
southbound on Western Avenue. Abrego also saw Sullivan run east on Manchester,
the direction Abrego was traveling. Abrego followed Sullivan and later identified him.
She did not identify appellant as one of the people involved in the shooting.
              Dr. Kathy Pezdek, an experimental psychologist and professor of
cognitive science at Claremont Graduate University testified as an expert witness for
the defense. Her testimony described for the jury the current scientific understanding
of the way human brains create and store memories and the multiple factors that affect
the accuracy of an eye witness identification. Pezdek testified that her own research,
and studies conducted by others, had established ten factors that affect the accuracy of
an identification: (1) exposure time; (2) distraction; (3) weapon focus; (4) stress; (5)

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disguise; (6) cross-racial identifications; (7) time delay between the observation and
the attempted identification; (8) suggestive influence from seeing a photograph after
the passage of time; (9) suggestive feedback from the police officer or other person
asking for the identification; (10) bias created by in-court identifications.
                                     Jury Instructions
              The trial court instructed the jury with the pattern jury instructions
concerning circumstantial evidence. Among other things, it informed the jury:
"[B]efore you may rely on circumstantial evidence to find the defendant guilty, you
must be convinced that the only reasonable conclusion supported by the circumstantial
evidence is that the defendant is guilty. If you can draw two or more reasonable
conclusions from the circumstantial evidence and one of those reasonable conclusions
points to innocence and another to guilt, you must accept the one that points to
innocence." (CALCRIM No. 224.)
              The jury was also instructed, in terms of CALCRIM No. 315, to evaluate
eye witness identification testimony using many of the same factors described by Dr.
Pezdek. The trial court instructed the jury, in terms of CALCRIM No. 332, on its
evaluation of the expert testimony: "Witnesses were allowed to testify as experts and
to give opinions. You must consider the opinions, but you are not required to accept
them as true or correct. [¶] The meaning and importance of any opinion are for you to
decide. In evaluating the believability of an expert witness, follow the instructions
about the believability of witnesses generally. In addition, consider the expert's
knowledge, skill, experience, training and education, the reasons the expert gave for
any opinion, and the facts or information on which the expert relied in reaching that
opinion. You must decide whether information on which the expert relied was true
and accurate. [¶] An expert witness may be asked a hypothetical questions. A
hypothetical question asks the witness to assume certain facts are true and to give an
opinion based on the assumed facts. It is up to you to decide whether an assumed fact
has been proved. If you conclude that an assumed fact is not true, consider the effect
of the expert's reliance on that fact in evaluating the expert's opinion. [¶] You may

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disregard any opinion that you find unbelievable, unreasonable, or unsupported by the
evidence."
                                        Discussion
              The trial court did not define expert opinion testimony as circumstantial
evidence or specifically instruct the jury to apply CALCRIM No. 224 in its evaluation
of the expert testimony. Appellant contends this was error. He contends the trial court
was obligated, sua sponte, to instruct the jury that, if the expert witness' opinion
supported two reasonable inferences, one leading to guilt and the other to innocence, it
was obligated to accept the inference leading to innocence.
              As we noted above, appellant did not request this clarifying instruction,
or object that the instructions given were incomplete or ambiguous. As a
consequence, he has forfeited this claim for purposes of appeal. " 'A trial court has no
sua sponte duty to revise or improve upon an accurate statement of law without a
request from counsel, and failure to request clarification of an otherwise correct
instruction forfeits the claim of error for purposes of appeal. . . .' " (People v. Whalen
(2013) 56 Cal.4th 1, 81-82, quoting People v. Lee (2011) 51 Cal.4th 620, 638.) If
appellant "believed the instruction [on expert witness testimony] required elaboration
or clarification, he was obliged to request such elaboration or clarification in the trial
court." (People v. Lee, supra, 51 Cal.4th at p. 638.)
              Appellant urges us to reach the merits of his claim because the forfeiture
rule does not apply to a pure question of law, such as the question of whether expert
opinion testimony should be evaluated using the same rules and preferences applicable
to circumstantial evidence. (In re Sheena K. (2007) 40 Cal.4th 875, 884.) The "pure
question of law" presented here, however, is not whether expert testimony is
circumstantial evidence or even whether a jury instruction to that effect would have
been a correct statement of the law. The question is whether the trial court had a duty
to give that instruction on its own motion, without a request from the defense. We
answer that question in the negative.


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               A trial court has a duty to instruct the jury, sua sponte, " ' "on general
principles which are closely and openly connected with the facts before the court." ' "
(People v. Gutierrez (2009) 45 Cal.4th 789, 823.) This includes a duty to instruct the
jury on the defense theory of the case and on any affirmative defenses that are relied
upon by the defendant, or that are supported by substantial evidence and are not
inconsistent with the defense theory of the case. (People v. San Nicolas (2004) 34
Cal.4th 614, 669.) There is no similar duty to provide the jury with "pinpoint"
instructions. A pinpoint instruction does not involve a general principle of law, but
instead describes specific evidence that could negate or rebut the prosecution's proof of
an element of the offense. (People v. Anderson (2011) 51 Cal.4th 989, 996.) "Such
instructions relate particular facts to a legal issue in the case or 'pinpoint' the crux of a
defendant's case, such as mistaken identification or alibi. [Citation.] They are
required to be given upon request when there is evidence supportive of the theory, but
they are not required to be given sua sponte." (People v. Saille (1991) 54 Cal.3d 1103,
1119.)
               The instruction for which appellant now advocates is a "pinpoint"
instruction because it relates specific evidence – Dr. Pezdek's opinion testimony – to
an element of the offense – appellant's identity as the shooter. Our Supreme Court has
consistently held that such instructions " 'are not required to be given sua sponte and
must be given only upon request.' " (People v. Anderson, supra, 51 Cal.4th at pp. 996-
997, quoting People v. Saille, supra, 54 Cal.3d at p. 1117.)
               Appellant next contends counsel's failure to request instructions
concerning circumstantial evidence and expert testimony amounted to ineffective
assistance of counsel. We disagree. To prevail on a claim of ineffective assistance of
counsel, appellant must demonstrate that the representation he received from trial
counsel fell below an objective standard of reasonableness, according to prevailing
professional norms, and that there is a reasonable probability the result of the trial
would have been different but for counsel's unprofessional errors. (Strickland v.


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Washington (1984) 466 U.S. 668, 687-688; People v. Farnam (2002) 28 Cal.4th 107,
148.)
              Appellant has failed to demonstrate that he was prejudiced by trial
counsel's decision not to request the omitted instruction because there is no reasonable
probability appellant would have obtained a more favorable result had the instruction
been given. Dr. Pezdek described psychological factors that have been shown to
impact the reliability or accuracy of an eyewitness identification. She was not
permitted to opine on the accuracy or reliability of any particular witness'
identification, nor did she testify that identifications made under particular
circumstances (e.g., a one-person, in field "show up," or an in-court identification) are
always inaccurate or unreliable. Instead, her testimony informed the jury that
identifications made under certain circumstances are more likely to be unreliable or
inaccurate than identifications made under other circumstances. The inferences that
may reasonably be drawn from Dr. Pezdek's testimony might support, but do not
require, the jury's rejection of any eyewitness identification.
              Here, the eyewitness identifications were corroborated in many ways.
Most importantly, Sullivan identified appellant as his accomplice. At the time of his
arrest, Sullivan was carrying a cell phone that he had used to call appellant four times
within 10 minutes of the shooting. Appellant's cell phone received those calls through
a tower located three blocks south of the murder scene. Shoes matching the
description given by Barbara Lee were found in appellant's bedroom. Both Hart and
Lee described the shooter's distinctive hairstyle. Appellant's step-father testified that
appellant's hair matched that description on the morning of the shooting. Given this
extensive corroboration of the eyewitness identifications, we can see no reasonable
probability that an instruction directing the jury to treat Dr. Pezdek's testimony as
circumstantial evidence would have produced a verdict more favorable to appellant.
                                       Conclusion
              The trial court was not obligated to instruct the jury, sua sponte, to apply
instructions governing its consideration of circumstantial evidence to its consideration

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of expert witness testimony. Because appellant did not request that instruction, he has
forfeited the claim of error for purposes of appeal.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                                       YEGAN, J.


We concur:


              GILBERT, P.J.


              PERREN, J.




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                                 Henry J. Hall, Judge

                        Superior Court County of Los Angeles

                        ______________________________


              Donald R. Tickle, under appointment by the Court of Appeal, for
Appellant.


              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C.
Johnson, Supervising Attorney General, Michael Katz, Deputy Attorney General, for
Respondent.




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