Filed 4/30/15 P. v. Grey CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065038

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD240243)

ANTUON EUGENE GREY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Runston G. Maino, Judge. Affirmed.

         Eric R. Larson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and

Respondent.



         A jury found Antuon Eugene Grey guilty of murdering Edwin Jackson, attempting

to murder Dave Lockett and assaulting Lockett with a firearm. It also found true a
number of firearm, gang, and great bodily injury allegations. The court subsequently

found Grey had a valid strike and prison prior. Grey received a total prison term of 19

years, plus 100 years to life. Although codefendant Deandre Grey, Grey's brother, was

tried on the above charges, the prosecution elected to dismiss all of the charges against

him due to insufficient evidence.

       Grey appeals, contending the trial court prejudicially erred (1) by removing a juror

during the trial and (2) in refusing his request to instruct the jury to view eyewitness

testimony with caution. We reject his contentions and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On January 20, 2012, Hopeton Bennett, a member of the Parkside/Skyline gang

known as "Baby Dos," was shot and killed, and Parkside/Skyline gang member Julian

Velasquez was shot. Grey was also a member of the Parkside/Skyline gang and was

known as "Little Dos." The naming arrangement between Grey and Bennett indicated

that Grey was something of a mentor to Bennett.

       The following day, Lockett was visiting some family members at an apartment

complex on Solola Avenue in San Diego. While in the parking lot, Lockett ran into an

acquaintance, Jackson, who lived at the complex. Jackson was a member of the

Lincoln Park gang, the chief rival of Parkside/Skyline gang. The Lincoln Park gang

was known to occupy the apartment complex on Solola Avenue.

       As Lockett started back to his relative's apartment, he saw two black males, one

of whom he later identified as Grey, approaching from the parking lot entrance.

Another witness heard Jackson ask the men, "Blood, who is you niggers?" After a

                                              2
brief exchange, Grey pulled a firearm from his sweatshirt pocket and fired the weapon,

striking Lockett in the stomach as Lockett dove to the ground. Lockett then heard

running footsteps and multiple gunshots. A number of these shots struck Jackson, who

died from his injuries. Police recovered a beanie hat from the scene with DNA analysis

producing a match to Grey's brother.

       Later that day, Lockett gave a description of the shooter to police, noting that the

shooter had a lot of acne on his face. Lockett, however, did not get a look at the face of

Grey's companion. As a result of the DNA match, police went to the residence of

Grey's brother where they encountered and photographed Grey, who had distinctive

acne on his face and appeared to fit the general description of the shooter. Police

recovered from the residence a pamphlet for Bennett's funeral memorial.

       Police later conducted an audio-recorded photographic lineup with Lockett.

Lockett selected Grey's photograph out of a five-photograph lineup and identified him as

the shooter. The detective, however, forgot to have Lockett sign the photograph. The

following day, police conducted another audio-recorded photographic lineup with

Lockett. Lockett again identified Grey's photograph as the shooter and signed the

photograph. Lockett testified at trial he had no doubt and was "100 percent" sure Grey

was the shooter.

       A gang expert testified regarding gangs and gang culture, including that acts of

violence between rival gangs result in violent retaliation. Based on a hypothetical

mirroring the prosecution's evidence, including the shooting death of Bennett



                                             3
approximately 30 hours earlier, the gang expert opined that the shooting in this case was

committed for the benefit of the Parkside/Skyline gang.

                                        DISCUSSION

                                     I. Removal of Juror

A. Background Facts

       After the prosecution rested its case, the defense called as its second witness an

eyewitness identification expert, Dr. Roy Malpass. Although currently retired,

Dr. Malpass was previously a professor at a number of universities, including the

University of Texas at El Paso.

       Dr. Malpass has qualified as an expert in courts throughout the United States, and

also participated in some national studies. During his career in academia, Dr. Malpass

conducted experiments regarding eyewitness identification, including one study which

demonstrated that if witnesses are given an unbiased instruction stating that the suspect

may or may not be present in a lineup at the time they are shown the lineup, the false

positive identification rate decreases. Dr. Malpass testified that studies performed by

some other researchers in his field show that while there is a small correlation between

the confidence an eyewitness has in his or her identification and the accuracy of the

identification, the correlation is not strong.

       With respect to the specific lineup used in this case, Dr. Malpass observed that the

photographic lineup contains only five photographs, whereas the prevailing consensus

throughout the United States including at the Department of Justice is that six

photographs should be used. In addition, two of the nonsuspect "filler" photographs

                                                 4
included in the lineup were different than Grey's photograph in terms of skin color and

facial hair. He concluded that the lineup was biased against Grey.

       Dr. Malpass noted that a double-blind procedure, where the law enforcement

officer administering the lineup does not know the identity of the suspect, was not used in

this case. He commented that because the police placed Grey's photograph as the last one

in the sequential lineup, a witness might feel extra pressure to identify a suspect when

reaching the last photograph. He also noted that research showed that when witnesses are

placed in stressful situations or situations involving more than one suspect, their ability to

make accurate identifications decreases.

       During a break in Dr. Malpass's testimony on direct examination, Juror Number 8

(the Juror) asked to speak to the court. The following colloquy then occurred:

          "The Court: We're in my office with the two attorneys, the reporter,
          and [the Juror]. Yes, sir. Go ahead. Tell us what your concerns are.

          "[The Juror]: The last witness stated that he was a professor at the
          University of Texas at El Paso, and I believe I am now a biased juror
          because of that, because I actually attended the University of Texas
          at El Paso as a student, and I was a participant in some of the
          psychological studies that were discussed.

          "The Court: Do you recognize him?

          "[The Juror]: I do not recognize him. I do not recognize his name,
          but my fear is that the atmosphere of the researchers that he was a
          part of influenced me in the past, and it has helped me form an
          opinion, you know, that is biased in the favor of the defense.

          "The Court: Okay. Let's see. [Defense counsel], do you have any
          questions you would like to ask the juror?

          "[Defense Counsel]: So what do you mean by biased?


                                              5
"[The Juror]: I feel like I have already formed an opinion of the --
once the prosecutor rested, I felt I already formed a good solid
opinion, and unless something else changed, then I almost knew
which way I was going to cast my ballot for. But now that this
witness has come up, I kind of feel guilty. I feel that I would feel
guilty voting in that particular way. I'm not sure if it's appropriate to
discuss how I would find the case.

"The Court: No. I think we probably can infer it from what you said.
I don't know that we need to go into that. Let me ask you this: When
were you there and participating in those studies?

"[The Juror]: Well, there was two periods when I was a student at
the University of El Paso. I was a student between 1999 and 2000,
also from 2006 to 2009, and it was during 1999 and 2000 when I
participated in a psychological -- psychology class, Introduction to
Psychology. And part of the curriculum of that class was essays.
And in lieu of writing an essay, you can participate in psychological
studies, and I participated in a number of those, including studies
that involved eyewitness identification.

"The Court: Okay. You will only -- bias means that you can't be fair
anymore. It doesn't mean you have a difference in evidence, and
you have to resolve that. Do you think that you are so biased, really,
against the prosecutor now?

"[The Juror]: I believe so. I would feel very bad if I was forced to
render a verdict. I'd constantly be questioning myself whether or not
I made the right decision.

"The Court: [Defense counsel], any other questions?

"[Defense Counsel]: No thanks.

"The Court: Mr. Prosecutor, any questions?

"[The Prosecutor]: No.

"The Court: Thank you for your candor. But you don't recognize the
professor?

"[The Juror]: I do not recognize the professor.


                                    6
   "The Court: Did you go through the types of studies he describes
   where something happens?

   "[The Juror]: Yes. And followed up after on it. Afterwards,
   followed up on the studies. And, like, in the years I followed it, I
   heard stuff, you know, say, like, reports that had -- that were related
   to those studies, and it would pique my curiosity because of my
   involvement on them. I would read up on the reports. I would read
   their findings that eyewitnesses were very unreliable, according to
   those studies, and so that influenced my development while I was --
   from the late teenage years through my 20's, to form that opinion.

   "The Court: Thanks. In view of my questions, any questions from
   the defense?

   "[Defense Counsel]: No. Thanks.

   "The Court: From the Prosecutor?

   "[The Prosecutor]: No. Thank you.

   "The Court: [Juror], why don't you go on out, and I'll talk to the
   attorneys in here. We'll be with you."

Outside of the presence of the Juror, the colloquy continued:

   "The Court: The juror has left. What is the position of either side on
   this?

   "[The Prosecutor]: It's our position that we excuse him and impanel
   an alternate or random alternate.

   "The Court: [Defense counsel]?

   "[Defense Counsel]: Well, you tell them to reserve judgment until
   they get into the deliberation room, and I think he's an example of
   how that oftentimes doesn't happen, unfortunately.

   "The Court: I think in view of what he's saying, that I should excuse
   him. Do I do that with your -- over your objection?

   "[Defense Counsel]: I'll submit, Your Honor.


                                      7
           "The Court: Very well. I will go ahead and excuse [the Juror]."

B. Analysis

       Grey complains the court's inquiry was too cursory and it failed to state specific

reasons for removing the Juror. Even assuming the court's inquiry was sufficient and the

failure to state any specific reasons for removing the Juror should be excused, Grey

contends his convictions should be reversed because there was no showing to a

demonstrable reality of a disqualifying bias on behalf of the Juror. Grey concedes

defense counsel did not expressly object to the removal, but claims the issue is preserved

for review as the court had a sua sponte duty to conduct an adequate inquiry, any

objection would have been futile, we have the inherent authority to consider such

constitutional issues on the merits absent any objection from defense counsel and he

received ineffective assistance of counsel.

       Penal Code section 1089 "authorizes the trial court to discharge a juror at any time

before or after the final submission of the case to the jury if, upon good cause, the juror is

'found to be unable to perform his or her duty.' " (People v. Bennett (2009) 45 Cal.4th

577, 621.) "A juror who is actually biased is unable to perform the duty to fairly

deliberate and thus is subject to discharge." (People v. Barnwell (2007) 41 Cal.4th 1038,

1051.) Removal of a juror under this statute is committed to the discretion of the trial

court, and we review whether the grounds for such removal appear in the record as a

"demonstrable reality." (People v. Thompson (2010) 49 Cal.4th 79, 137.) "The

demonstrable reality test entails a more comprehensive and less deferential review. It

requires a showing that the court as trier of fact did rely on evidence that, in light of the

                                               8
entire record, supports its conclusion that bias was established." (People v. Barnwell, at

pp. 1052-1053.) We do not reweigh the evidence but inquire whether the trial court's

conclusion "is manifestly supported by evidence on which the court actually relied." (Id.

at p. 1053.)

       A trial court is in the best position to determine whether a potential juror is

sincerely willing and able to listen to the evidence and the instructions, and render an

impartial verdict based on that evidence and those instructions. (People v. Hillhouse

(2002) 27 Cal.4th 469, 488-489.) "A reviewing court must allow the trial court to make

this sort of determination. The trial court is present and able to observe the juror itself. It

can judge the person's sincerity and actual state of mind far more reliably than an

appellate court reviewing only a cold transcript." (Ibid.)

       "The trial court retains discretion about what procedures to employ, including

conducting a hearing or detailed inquiry, when determining whether to discharge a juror."

(People v. Guerra (2006) 37 Cal.4th 1067, 1159.) The "manner in which the trial court

conducted its inquiry [on a juror's fitness to serve] is subject to review for abuse of

discretion under the typical standard." (People v. Fuiava (2012) 53 Cal.4th 622, 712,

italics deleted.) For example, a trial court has the discretion to decide " 'a juror's

disqualification is so clear that further [inquiry] is pointless . . . .' " (Id. at p. 714.)

       As a threshold matter, by failing to object to the discharge of the Juror, Grey

forfeited his claim that the trial court erred in excusing the Juror for cause. (People v.

Holt (1997) 15 Cal.4th 619, 656.) We reject Grey's assertion that an objection would

have been futile as unsupported by the record. (People v. Hill (1998) 17 Cal.4th 800, 820

                                                  9
[defendant will be excused from the necessity of a timely objection if objection would be

futile].) After the prosecutor argued the Juror should be excused, defense counsel

conceded the Juror's bias against the prosecution. The trial court stated its proposed

ruling to remove the Juror and essentially invited defense counsel to state an objection.

The trial court removed the Juror after defense counsel did not object to the court's

proposed ruling. On this record, we cannot say an objection would have been futile.

Even assuming Grey had preserved this claim on appeal, we conclude that the trial court

did not err.

       First, we find the trial court did not abuse its discretion in how it conducted its

inquiry. After hearing the Juror's concerns, the trial court questioned the Juror and

invited counsel to question the Juror. The court ended its inquiry after it and counsel had

no further questions. With the benefit of hindsight, we might fault the court for failing to

ask additional questions. But we cannot say that the trial court abused its discretion in

how it conducted its inquiry. Additionally, as we shall discuss, the record shows the trial

court properly excused the Juror based on bias against the prosecution.

       "[A]ctual bias" is "the existence of a state of mind on the part of the juror in

reference to the case, or to any of the parties, which will prevent the juror from acting

with entire impartiality, and without prejudice to the substantial rights of any party."

(Code Civ. Proc., § 225, subd. (b)(1)(C); Pen. Code, § 1046 ["Trial juries for criminal

actions are formed in the same manner as trial juries in civil actions."]; People v.

Hillhouse, supra, 27 Cal.4th at p. 488.) Here, the Juror expressed concern he was biased

against the prosecution, explaining that while he did not know Dr. Malpass, he attended

                                              10
the university where Dr. Malpass taught, participated in some of the studies Dr. Malpass

discussed, followed up on these studies for years by reading reports and had formed an

opinion on eyewitness testimony in favor of the defense. The court told the Juror that

bias did not mean resolving a difference in the evidence, but rather that he could no

longer be fair. It then asked the Juror if he was biased against the prosecution. The Juror

expressed his belief that he could not be fair and that he would "feel very bad" if forced

to render a verdict.

       The record shows the Juror's state of mind regarding eyewitness testimony made

him biased against the prosecution and showed to a demonstrable reality the Juror could

not be impartial. Accordingly, the trial court did not err by discharging the Juror. While

Grey complains the trial court should have allowed the Juror to hear the remainder of

Dr. Malpass's testimony before discharging the Juror, we fail to see how any additional

testimony by Dr. Malpass would have changed the Juror's opinion based on the Juror's

statement he had formed his opinion before Dr. Malpass testified and later felt guilty for

doing so in light of Dr. Malpass's testimony.

                                    II. Jury Instruction

A. Background Facts

       Defense counsel requested the trial court modify the instruction regarding the

evaluation of eyewitness testimony, CALCRIM No. 315, in a variety of ways including

adding language that "[y]ou must view eyewitness testimony with caution and evaluate it

carefully." The trial court refused Grey's requested instruction addition, citing People v.

Wright (1988) 45 Cal.3d 1126 (Wright) and People v. Felix (2008) 160 Cal.App.4th 849.

                                             11
The trial court also noted it would instruct with CALCRIM No. 301, which cautions the

jury to carefully review the testimony when a fact is proven by only one witness. The

trial court ultimately instructed the jury with a modified version of CALCRIM No. 315 as

follows (the modifications are italicized):

          "You have heard eyewitness testimony identifying the defendant.
          Each of you alone must evaluate the credibility of the witnesses. As
          with any other witness, you must decide whether an eyewitness gave
          truthful and accurate testimony. Consider the possibility that a
          witness made an honest but mistaken identification.

          "In evaluating identification testimony, consider all of the evidence,
          including but not limited to 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 between the witness and the perpetrator at the time of
              observation, and duration of observation?

              "• How closely was the witness paying attention?

              "• Was the witness under stress when he or she made the
              observation?

              "• Did the witness give a description and how does that
              description compare to the defendant?

              "• How much time passed between the event and the time when
              the witness identified the defendant?

              "• Was the witness asked to pick the perpetrator out of a group?

              "• Did the witness ever fail to identify the defendant?



                                              12
              "• Did the witness ever change his or her mind about the
              identification?

              "• How certain was the witness when he or she made an
              identification?

              "• Are the witness and the defendant of different races?

              "• Was the witness able to accurately identify other participants
              in the crime?

              "• Was the witness able to identify the defendant in a
              photographic or physical lineup?

              "• What was the construction and presentation of the lineup
              shown to the witnesses?

              "• 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."

B. Analysis

       A trial court is required to instruct a jury on the general principles of law that are

relevant to the issues raised by the evidence in a given case. (People v. Valdez (2004) 32

Cal.4th 73, 115.) A pinpoint instruction relates particular facts to a particular legal theory

and "pinpoints" the crux of defendant's case. (People v. Gutierrez (2009) 45 Cal.4th 789,

824.) A trial court is required to give a pinpoint instruction when defendant requests it

and there is evidence that supports the theory. (Ibid.) A court need not, however, give a

pinpoint instruction that is argumentative or duplicative. (People v. Harris (2013) 57

Cal.4th 804, 853.) The failure to include a pinpoint instruction requires reversal if it is

"reasonably probable that had the jury been given defendant's proposed pinpoint

                                              13
instruction," it would have come to a different conclusion. (People v. Earp (1999) 20

Cal.4th 826, 887.)

       Here, Grey asserts the trial court prejudicially erred in rejecting his requested

instruction to view eyewitness identification evidence with caution. To the extent his

proposed language could have been deemed argumentative or inappropriate, he asserts

the trial court had a duty to craft appropriate language rather than reject his request

outright. Grey concedes that our high court in Wright, supra, 45 Cal.3d 1126, rejected a

similar instruction, but urges Wright is distinguishable on its facts, is not controlling and

is out of step with more modern jurisprudence in both California and other jurisdictions

throughout the United States. We disagree.

       In Wright, the defendant requested the following instruction: " 'Where the

prosecution has offered identification testimony, that is, the testimony of an eyewitness

that he saw the defendant commit the act charged, such testimony should be received

with caution. An identification by a stranger is not as trustworthy as an identification by

an acquaintance. Mistaken identification is not uncommon, and careful scrutiny of such

testimony is especially important.' " (Wright, supra, 45 Cal.3d at p. 1152, fn. 25.) Our

high court concluded "this instruction was properly refused. [¶] No California case has

held that such a cautionary instruction is required in addition to the eyewitness 'factors'

instruction. . . . [¶] . . . [¶] . . . A special cautionary instruction is unnecessary because

the 'factors' instruction already required properly highlights the factors relevant to

defendant's concerns about the reliability of eyewitness identification testimony in a

particular set of circumstances." (Id. at pp. 1152-1153.)

                                              14
       The Supreme Court further held that an additional "cautionary instruction given

along with the factors instruction would place unwarranted emphasis on the eyewitness

identification, and likely give the jury the improper impression that the court considers

the eyewitness identification evidence not only particularly important but also

overwhelmingly suspect." (Wright, supra, 45 Cal.3d at at p. 1153.) The court concluded

"the eyewitness 'factors' instruction provides the jury with sufficient means to evaluate

eyewitness identification testimony and alerts jurors to the factors that may affect

eyewitness identifications. In addition, expert testimony may be used when appropriate

to further elucidate the effect of the factors listed." (Id. at p. 1154.)

       Grey argues his proposed instruction that a jury "must view eyewitness testimony

with caution and evaluate it carefully" is different from the proposed instruction in

Wright. (Wright, supra, 45 Cal.3d at p. 1152, fn. 25.) Grey is partially correct. The

proposed instruction in Wright sought to inform the jury that "[m]istaken identification is

not uncommon, and careful scrutiny of such testimony is especially important." (Ibid.)

The Wright court found this usurped the role of the jury "as the exclusive trier of fact by

binding it to the view that eyewitness identifications are often mistaken." (Id. at p. 1153.)

While Grey's proposed instruction does not suffer from the same infirmity, this difference

does not render our high court's other conclusions inapplicable.

       CALJIC No. 2.92, the factors instruction discussed in Wright, is substantively

indistinguishable from CALCRIM No. 315. (Wright, supra, 45 Cal.3d at pp. 1165-1166.)

As the Wright court found, the factors instruction already highlighted issues relevant to

the reliability of eyewitness identification and rendered a general cautionary instruction

                                               15
unnecessary. (Id. at p. 1153.) We are obligated to follow Wright on this point. (Auto

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Additionally, the trial

court instructed with CALCRIM No. 301, which provided the following: "The testimony

of only one witness can prove any fact. Before you conclude that the testimony of one

witness proves a fact, you should carefully review all of the evidence." We presume

jurors follow the court's instructions and are able to understand and correlate the

instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

       The Wright court also concluded a factors instruction, such as CALCRIM No.

315, provides proper guidance to the jury on the issues related to eyewitness

identification and that any explanation of the effects of those factors should be "left to

argument by counsel, cross-examination of the eyewitnesses, and expert testimony where

appropriate." (Wright, supra, 45 Cal.3d at p. 1143.) Although Grey argues at length that

recent studies demonstrate the inherent unreliability of eyewitness identification

evidence, such studies simply underscore the Wright court's conclusion that how jurors

should view eyewitness testimony is best addressed by expert testimony.

       Finally, we reject Grey's suggestion that in People v. Johnson (1992) 3 Cal.4th

1183 (Johnson) our high court approved a "with caution" eyewitness instruction. The

issue in Johnson, was whether the modified version of CALJIC No. 2.92 given in that

case, which included a cautionary instruction, was deficient in other specific areas raised

by the defendant. (Johnson, at pp. 1230-1234.) The Johnson case did not address the

court's prior holding in Wright. Accordingly, we conclude the trial court did not err in

refusing Grey's requested instruction.

                                             16
                                  DISPOSITION

      The judgment is affirmed.



                                                MCINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

MCDONALD, J.




                                      17
