Filed 11/25/15 P. v. Webb CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138547
v.
DAVID CARLOS WEBB,                                                   (Solano County
                                                                     Super. Ct. No. VCR214517)
         Defendant and Appellant.


         Following a jury trial, David Carlos Webb was found guilty of two counts of
robbery (Pen. Code, § 211) arising out of two separate incidents. The jury also found
true enhancement allegations that both robberies involved the use of firearms. Defendant
contends his trial counsel provided ineffective assistance in failing to present expert
testimony regarding the reliability of eyewitness identification and in failing to move to
exclude identification testimony by one of the robbery victims. He also argues that the
trial court misinstructed the jury regarding eyewitness identification and the prosecutor
improperly vouched for the credibility of his witnesses. We find no error and affirm the
judgment.
                        FACTUAL AND PROCEDURAL BACKGROUND
The March 24, 2012, Incident
         On March 24, 2012, at around 2:00 a.m., Teri Mitchell was returning to her car in
the parking lot of Kaiser Hospital in Vallejo after taking her father-in-law to the
emergency room. As she stood by the open rear door, looking in her purse for her cell
phone, she heard footsteps rapidly approaching behind her. She turned and saw a man,


                                                             1
later identified as defendant, holding a gun in his left hand and running towards her. The
gun was rectangular and pointed in her direction. When defendant reached her, Mitchell
kicked him. Defendant shoved Mitchell back against the car and she fell onto the back
seat. Defendant jumped on top of her and shoved the gun into her right side several
times. Defendant did not say anything, but he thrust his face towards her face, which she
perceived to be a way of intimidating her so she would stop fighting back. Mitchell was
looking into defendant’s face while he was on top of her; she was able to get a good look
at him. Defendant grabbed her purse, waved it at her, jammed the gun into her side
again, and then ran off. Mitchell screamed and ran back into the emergency room.
       Officer Sean Kenney arrived about five minutes later. Mitchell was extremely
upset, shaking, and had difficulty talking. Mitchell described her assailant as an average-
sized African-American man with light-colored skin, wearing a sweatshirt with a hood
up. The hood covered his ears, neck, and part of his mouth. Mitchell was able to see his
forehead, eyes, nose, cheeks, and his mustache. She was not able to see his hair or
hairline. Officer Kenney did not try to retrieve any fingerprints from her car because he
did not think it likely he would find any based on Mitchell’s description of the incident.
       A week or two later, Mitchell picked defendant out of a photographic lineup. She
took her time and made sure she was positive before selecting his photograph. Mitchell
identified defendant at the preliminary hearing. She was even more certain this time that
defendant was the robber, seeing him in person as opposed to a photograph. Mitchell
also identified defendant at trial, testifying “It’s just a face you don’t forget when they’re
on top of you.” Mitchell acknowledged that the robbery was a traumatizing experience,
but denied that the emotional turmoil affected her ability to see and recognize her
assailant.
The April 7, 2012, Incident
       In April 2012, Joaquin Raya was in the business of selling medical marijuana. He
advertised his product on various websites. Raya received a text message from an
individual, later identified as defendant, interested in buying some marijuana. Defendant
agreed to buy four ounces, which Raya offered to sell for $800-$900. Defendant gave


                                              2
Raya the first and last name, identification number, and birth date of a registered medical
marijuana user named La John Hutchins, using this information as his own. Defendant
and Raya also had three or four telephone conversations. They made a plan to meet at
defendant’s apartment complex in Vallejo.
       On April 7, 2012, Raya drove to the agreed-upon location with about four ounces
of marijuana. Raya also had “a couple thousand” dollars in cash with him. Raya called
defendant when he arrived and defendant walked out to the front of the complex to meet
him. Raya and defendant remained on the phone as defendant walked outside. Raya
described defendant’s voice as “[s]oft, feminine.” Defendant had a companion with him.
Defendant declined Raya’s request to come out to his car; Raya got out of the car and
walked to the entrance of the complex. Defendant wanted to see the product, so the three
men walked into the complex. Defendant and his companion told Raya they had been
robbed and wanted to be sure Raya was not armed. All three men pulled up their shirts to
show they had no weapons in their waistbands.
       Raya started to get a bad feeling about the two because they were acting “really
scared, sketchy, like nervous.” Defendant wanted to go to his apartment, but Raya
refused and insisted that they complete the transaction outside. Defendant and the other
man wanted to check Raya’s backpack to see the marijuana and make sure he did not
have a gun. After looking inside the backpack, defendant grabbed it out of Raya’s hand.
Defendant’s companion pulled out a gun and told Raya to “get out of there, walk the
other way.” Raya left and called the police.
       Raya spoke with police officers who responded to the scene. He gave them
defendant’s phone number, the name and medical marijuana number defendant had given
him, and a description of defendant and his companion. Raya testified that, at the time of
the robbery, defendant’s head was not covered in any way and he had a short Afro, not
the bald head he had at trial. Defendant also had a mustache.
       About one week later, Officer Steven Cheatham became involved with
investigating the April 7 robbery. Cheatham showed Raya six photographs, one by one,
that were numbered one to six, and asked Raya whether he recognized anyone from his


                                               3
robbery. Cheatham testified that he put down photo number one, and Raya looked at it.
Then he put down photo number two, and Raya looked at it as well. As Cheatham was
putting down photo number three, which was defendant’s photo, Raya immediately told
him this was the person that robbed him. Raya reacted “[e]xtremely quickly” in
identifying the photo; the officer had not even finished putting the photograph down.
Raya said he was positive that was the robber, and wrote “[t]his is the guy that robbed
me” on the photo.
       Officer Cheatham explained at trial that defendant’s photo was used in the lineup
presented to Raya because of an incident that occurred a week later, on April 13. The
other five photographs were pulled from the Solano County booking system and were
chosen because they all appeared similar to each other.
The April 13, 2012, Undercover Operation
       The same person who made the original contact with Raya to purchase medical
marijuana on April 7 subsequently texted him again, this time in response to a new on-
line ad put up by Raya the day after he was robbed. Raya responded to the text message,
but did not let on that he was the victim from the earlier incident. Raya gave this
information and the person’s telephone number to the Vallejo police. Officer Fabio
Rodriguez, posing as a marijuana distributor, called the phone number and spoke with
defendant, who again identified himself as La John Hutchins. In a series of six or seven
phone calls, Rodriguez set up a meeting with defendant to sell marijuana. Rodriguez
spoke with the same person on the phone each time; the person had a somewhat feminine
voice. The person wanted to meet at an apartment complex about a block and a half
away from the complex where Raya was robbed and within two miles of Kaiser Hospital
where Mitchell had been robbed a few weeks earlier.
       Vallejo Police Department Sergeant Kevin Coelho supervised the operation, with
the goal of apprehending defendant. Coelho chose a nearby church parking lot as the
safest place to attempt the arrest in case shots were fired. The meeting was planned for
2:00 or 3:00 in the afternoon; it was considered an “extremely high-risk” operation.



                                             4
       Detective Jason Potts, posing as a marijuana dealer, spoke with defendant and
negotiated a price to sell 20 ounces of marijuana. Potts noticed that the voice of the
person he spoke with was polite and had an almost feminine tone. On April 13, after
finally persuading defendant to meet in the church parking lot, Potts parked there in an
undercover vehicle. Several minutes later, Potts saw defendant walking across the lot.
Potts called the phone number again to see defendant answer the phone. Instead of
answering, defendant patted his pants, and he and Potts exchanged waves. At this point,
Potts recognized defendant based on prior contacts, thinking to himself, “Oh, that’s
David Webb,” as soon as defendant waved at him. Potts called dispatch during the
incident and asked for a photo of David Webb.
       At that point, with defendant less than 40 feet away, Potts made the bust signal
and threw a flash bang device. Defendant fell to the ground and then got up and ran.
Sergeant Coelho and Detective Kent Tribble had been monitoring the situation from a
van nearby; the van accelerated toward Potts and defendant. Coelho saw Potts and
defendant running. Defendant was wearing a white jacket and dark jeans. Potts had
started to give chase, but turned around when he realized that he had left a loaded firearm
in his vehicle and other officers were chasing defendant. At that moment, defendant
reached into his waistband area and looked at Potts over his shoulder. From about 15 feet
away, officers saw defendant digging in his pocket for something as he ran. Detective
Tribble thought defendant was reaching for a firearm and shouted, “He’s got a gun. He’s
getting a gun.” Tribble then saw the rear portion of the gun defendant was attempting to
remove. Sergeant Coelho saw defendant move his left hand to the left side of his
waistband and remove a gun with his right hand from the waistband. Both Coelho and
Tribble fired at defendant to protect Potts. Defendant ran up the stairs into the apartment
complex next to the church. Coelho did not shoot again because defendant was no longer
an immediate threat. Defendant was able to run past the perimeter officers and escape
immediate apprehension.
       The day after the failed undercover operation, Detective Tribble conducted a
follow-up investigation at the apartment complex and found a white jacket that looked


                                             5
like the one defendant had been wearing. The jacket had bullet entry and exit holes in the
upper portion of the left sleeve. Tribble viewed a hospital photograph of an African-
American man with an exit wound in the left shoulder that was consistent with the
location of the hole in the jacket. Tribble identified defendant as the person in the
photograph.
       On April 15, 2012, Officer Mathew Mustard interviewed defendant at the Solano
County Jail. Defendant had a gunshot wound to his left shoulder and did not deny that he
had been shot by police on April 13.
       Officer Mustard reviewed phone records for the cell phone number involved in the
Raya robbery and the undercover operation. The cell phone number was associated with
defendant’s name and date of birth. The cell phone records also contained evidence of
communications with Raya on April 7, 2012. Text messages showed the name “La John
Hutchins” when the user of the phone attempted to make purchases of marijuana.
       By amended information filed on October 1, 2012, the Solano County District
Attorney charged defendant with four counts. Count 1, based on the April 13 undercover
operation, charged assault of a police officer with a semi-automatic firearm (Pen. Code,
§ 245, subd. (b)),1 with an allegation that defendant personally used a semi-automatic
firearm (§ 12022.5, subd. (a)). Count 2, also based on the April 13 undercover operation,
charged unlawful firearm activity (§ 29820), with an allegation that defendant was
adjudged a ward of the juvenile court in 2006 for violation of section 211 (robbery).2
Before trial, defendant admitted the allegation as to count 2. Count 3, based on the
robbery of Raya, charged second degree robbery (§ 211) with an allegation that defendant
was armed with a firearm (§ 12022, subd. (a)(1)). Count 4, based on the robbery of
Mitchell, charged second degree robbery (§ 211) with an allegation that defendant
       1
           All further unspecified statutory references are to the Penal Code.
       2
         As applicable here, pursuant to section 29820, it is unlawful for a person under
the age of 30 to own or possess a firearm if that person was adjudged a ward of the court
within the meaning of Welfare and Institutions Code section 602 for committing an
offense listed in Welfare and Institutions Code section 707, subdivision (b). (§ 29820,
subds. (a), (b).)


                                               6
personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). The court struck
count 1 at the close of the prosecution’s case. The defense called no witnesses at trial.
       On October 19, 2012, the jury found defendant guilty of both robberies, counts 3
and 4, and found true the firearm allegations as to both counts. The jury deadlocked on
count 2, and the court granted the prosecution’s motion to dismiss it. The court denied
defendant’s motion for a new trial.
       On March 18, 2013, the court designated count 4 the principal term and sentenced
defendant to the high term of five years for the Mitchell robbery, 10 years for the section
12022.53, subdivision (b) personal use of a firearm enhancement, one third the midterm
for the Raya robbery, to run consecutively, and one third the midterm for the section
12022, subdivision (a)(1) enhancement to count 3 of four months. The aggregate term
imposed was 16 years, four months.
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
       Defendant contends two omissions by his trial counsel constituted ineffective
assistance of counsel: the failure to present expert testimony regarding eyewitness
identification evidence and the failure to move to exclude Mitchell’s identification
testimony.
       “ ‘The law governing [ineffective assistance of counsel] is settled. “A criminal
defendant is guaranteed the right to the assistance of counsel by both the state and federal
Constitutions. [Citations.] ‘Construed in light of its purpose, the right entitles the
defendant not to some bare assistance but rather to effective assistance.’ ” [Citations.] It
is defendant’s burden to demonstrate the inadequacy of trial counsel. [Citation.] We
have summarized defendant’s burden as follows: “ ‘In order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel’s performance was “deficient”
because his “representation fell below an objective standard of reasonableness . . . under
prevailing professional norms.” [Citations.] Second, he must also show prejudice
flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown
when there is a “reasonable probability that, but for counsel’s unprofessional errors, the


                                              7
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” ’ ” [Citation.]
[¶] Reviewing courts defer to counsel’s reasonable tactical decisions in examining a
claim of ineffective assistance of counsel [citation], and there is a “strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
[Citation.] Defendant’s burden is difficult to carry on direct appeal, as we have observed:
“ ‘Reviewing courts will reverse convictions [on direct appeal] on the ground of
inadequate counsel only if the record on appeal affirmatively discloses that counsel had
no rational tactical purpose for [his or her] act or omission.’ ” [Citation.]’ [Citation.] If
the record on appeal ‘ “ ‘sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,’ the claim on
appeal must be rejected,” ’ and the ‘claim of ineffective assistance in such a case is more
appropriately decided in a habeas corpus proceeding.’3 [Citation.]” (People v.
Vines (2011) 51 Cal.4th 830, 875-876.)
A.     Failure to Present an Eyewitness Identification Expert.
       The defense in this case was mistaken identity. Counsel presented the defense in
his opening statement, vigorously cross-examined victim-eyewitnesses Mitchell and
Raya, and argued misidentification extensively in closing argument. The jury was
instructed on eyewitness identification evidence; the trial court read every one of the
applicable factors in CALCRIM No. 315. Defendant contends, however, that cross-
examination was not sufficient to expose the weaknesses inherent in eyewitness evidence
and his counsel’s failure to present an eyewitness identification expert constituted
ineffective assistance of counsel. Defendant contends that an expert witness could have
testified regarding the factors affecting the reliability of such evidence, including the

       3
         During the pendency of this appeal, defendant’s appellate counsel filed a petition
for habeas corpus relief in this court. The petition is also based on trial counsel’s alleged
ineffectiveness in failing to present expert testimony on eyewitness identification. We
have denied the habeas petition (A143141) by separate order filed this day.


                                              8
effects of fear or stress, the presence of a weapon, and cross-racial identification, and
could have provided guidance to the jury in how to follow the instructions on eyewitness
testimony.
       Defendant does not carry his burden of affirmatively showing that counsel’s
representation was deficient. “When a claim of ineffective assistance is made on direct
appeal, and the record does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no satisfactory
explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) Here, there may well
have been sound strategic reasons for counsel’s decision not to call an expert. Defense
counsel himself exposed inconsistencies in the eyewitnesses’ testimony and, as
defendant’s brief describes it, “zealously cross-examined both eyewitness victims.”
Defense counsel also argued that the eyewitnesses’ testimony was not credible, and he
attacked eyewitness testimony generally as “one of the weakest, most unreliable bits of
evidence that we put in Court here . . . .” Counsel relied on the exhaustive list of factors
identified in CALCRIM No. 315 that affect the reliability of eyewitness identification
testimony—including the eyewitness being under stress, lighting, and cross-racial
identification—to argue that the eyewitness testimony should be disbelieved. Counsel
could have concluded that these factors were within the jury’s common understanding
and that he could effectively argue his case without expert testimony.
       Counsel also may have made the rational decision to address these issues himself
and avoid the risk that cross-examination of an eyewitness identification expert might
have supported the reliability of the eyewitness identifications in this case, particularly
the evidence corroborating Raya’s identification. As we have discussed, cell phone
records admitted at trial established that the phone number involved in the Raya robbery
and the undercover operation was associated with defendant’s name and date of birth.
The records showed text messages between Raya and defendant on April 7, 2012, and
that defendant used the name “La John Hutchins” when arranging to buy marijuana. At
trial, Detective Potts identified defendant as the individual who approached him in the
church parking lot and as the “David Webb” he knew from prior contacts, including


                                              9
having arrested him for robbery in 2009. Expert testimony strengthening the prosecutor’s
case that Raya correctly identified defendant, despite the presence of whatever factors the
expert identified as reducing reliability, could, in turn, undermine the defense challenge
to the Mitchell identification and the benefit of presenting the expert testimony. “ ‘Since
the decision may well have been “an informed tactical choice within the range of
reasonable competence, the conviction must be affirmed. [Citation.]” ’ [Citation.]”
(People v. Anderson, supra, 25 Cal.4th at pp. 569-570.)
B.     Failure to Move to Exclude Eyewitness and Pre-trial Identification Testimony.
       Defendant contends his trial counsel was ineffective by not seeking to exclude
Mitchell’s eyewitness and pre-trial identification testimony, which defendant now
contends was unreliable based on the circumstances of the robbery and an unduly
suggestive photo lineup. Defendant acknowledges that his counsel challenged the
credibility of Mitchell’s identification through cross-examination and closing argument,
but contends counsel’s failure to seek exclusion of the identification fell below an
objective standard of reasonableness.
       An out-of-court identification may be so unreliable that it violates a defendant’s
due process rights. (Manson v. Brathwaite (1977) 432 U.S. 98, 107; People v. Gordon
(1990) 50 Cal.3d 1223, 1242, overruled on another point in People v. Edwards (1991) 54
Cal.3d 787, 835.) “In order to demonstrate that the alleged incompetency of his trial
counsel in not objecting to the identification evidence denied him a potentially
meritorious defense, the defendant must present a convincing argument that the pretrial
identification procedure ‘resulted in such unfairness that it infringed his right to due
process of law.’ [Citations.] Our task is thus to assess the facts and circumstances of the
identifications to determine whether they were ‘so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification.’ [Citations.]”
(People v. Nation (1980) 26 Cal.3d 169, 179.)
       The initial inquiry in a due process challenge to identification evidence is whether
the identification procedure was unduly suggestive and unnecessary. (Manson v.
Brathwaite, supra, 432 U.S. at pp. 104-107; People v. Gordon, supra, 50 Cal.3d at p.


                                             10
1242.)4 “The question is whether anything caused defendant to ‘stand out’ from the
others in a way that would suggest the witness should select him.” (People v. Carpenter
(1997) 15 Cal.4th 312, 367, superseded by statute on another ground as noted in Verdin v.
Superior Court (2008) 43 Cal.4th 1096, 1106, abrogated on another ground in People v.
Diaz (2015) 60 Cal.4th 1176, 1185, 1193.) Defendant’s argument that the photo lineup
was unduly suggestive is as follows: “The distinctive shaved head of [defendant] in the
photo line-up shown Ms. Mitchell ultimately was the equivalent of an identification
procedure that ‘suggests in advance of identification by the witness the identity of the
person suspected by the police.’ (People v. Slutts (1968) 259 Cal.App.2d 886, 891.)
Singling out a suspect, which effectively occurred here when [defendant] was the only
one without hair, presents the greatest danger of misidentification. (People v. Nation,
supra, 26 Cal.3d at pp. 180-181.) The sole subject with a shaved head was suggestive
because Ms. Mitchell did not see the hair of her assailant. Her subsequent identification
at the preliminary hearing merely set the potential misidentification in stone . . . .”
       We have examined the photographs and observe that all six photographs depict
young adult African-American males. All appear from the shoulders up and are facing
forward against blank backgrounds. All appear similar in age, weight, and build. None
has any visible jewelry, eyeglasses, or tattoos. All are casually dressed. Some have
mustaches and some have hair on their chins. Only defendant’s head is shaved, but the
other five men have very short hair. Defendant’s argument that his photograph was
distinct from the others is without merit. Mitchell made clear that she could not see the
assailant’s hair or hairline during the robbery, and that the hair or hairline of the
photographed individuals had no effect on her selecting defendant’s photo and excluding

       4
        Because we conclude the identification procedure itself was not unduly
suggestive, we do not reach the second inquiry, “whether the identification itself was
nevertheless reliable under the totality of the circumstances . . . .” (People v. Gordon,
supra, 50 Cal.3d at p. 1242.) The identification is constitutionally unreliable only if the
answer to the first question is yes and the second is no. (Ibid., citing Manson v.
Brathwaite, supra, 432 U.S. at pp. 104-107, 109-114; see also People v. DeSantis (1992)
2 Cal.4th 1198, 1222.)


                                              11
the others.5 Nothing here caused defendant “ ‘to “stand out” from the others in a way that
would suggest the witness should select him.’ [Citation.]” (See People v. Cunningham
(2001) 25 Cal.4th 926, 990.) Defendant has not met his burden of establishing that the
photo lineup was impermissibly suggestive.
       Defendant’s reliance on People v. Nation, supra, 26 Cal.3d 169 does not advance
his argument. In Nation, the defendant was accused of approaching three young girls and
attempting to rape one of them. Two weeks later, the victim and her two friends went to
the police station to try to identify the attacker from photographs. (Id. at pp. 173-174.)
The three looked at the photographs together. One of the girls, not the victim, selected
defendant’s mug shot and informed the others that she had found the assailant. After
some discussion, the other two agreed. At the time, the victim had been considering a
different suspect’s photograph. The girls then took the photograph home for a week to
show two other possible witnesses, including one of their mothers who reported that a
man made a lewd comment to her in the vicinity of the crime later that night. When the
girls showed her defendant’s photograph, she agreed it depicted the same man who had
commented to her. (Id. at pp. 174, 180.) At a live lineup two months later, only the
mother identified defendant; the three girls selected a different person and were told they
had chosen the “wrong” man. (Id. at p. 174.) In reversing the defendant’s conviction, the
Nation court found the photographic identification procedure was so extraordinarily
suggestive that it was doubtful the prosecutor could have submitted the evidence over a
timely objection by defense counsel, and held that counsel’s failure to object constituted
ineffective assistance of counsel. (Id. at pp. 174, 179-181.) By contrast, the
identification procedure here involved one witness, Mitchell, who repeatedly and

       5
         On cross-examination, defense counsel asked Mitchell if she was able to exclude
certain photos because of different facial features such as different chins, hair or
eyebrows. Mitchell answered, “No. The other ones just didn’t look anything like the
person that I knew that it was.” Counsel asked Mitchell a number of questions about the
assailant’s hood and defendant’s shaved head in the photo. Mitchell testified consistently
that she could not see any hair on defendant’s head and did not know whether he had any
hair because of the hood.


                                             12
consistently identified defendant both in a photograph and in person, with none of the
suggestive and unreliable circumstances present in Nation.
       We also understand defendant to argue that defense counsel should have sought to
exclude Mitchell’s in-court identification of defendant because it was “derived from [an]
unreliable and potentially suggestive” pretrial identification, and thus resulted in “an
additional and separate denial of due process.” Having concluded that the pretrial
identification procedure here was not unduly suggestive, we necessarily reject this
contention.
C.     Instructional Error.
       Defendant contends his rights to due process and a fair trial were violated by the
court’s instruction pursuant to CALCRIM No. 315 that the jury could consider the
witness’s level of certainty as one of many factors in evaluating the eyewitness
identification testimony.6 At trial, both Mitchell and Raya testified that they were
positive of their identification of defendant, and the prosecutor emphasized their certainty


       6
         The trial court instructed the jury with CALCRIM No. 315 in its entirety, which
provides: “You have heard eyewitness testimony identifying the defendant. As with any
other witness, you must decide whether an eyewitness gave truthful and accurate
testimony. [¶] In evaluating identification testimony, consider the following questions:
Did the witness know or have contact with the defendant before the event? How well
could the witness see the perpetrator? What were the circumstances affecting the
witness’s ability to observe, such as lighting, weather conditions, obstructions, distance,
and duration of observation? How closely was the witness paying attention? [¶] Was
the witness under stress when he or she made the observation? Did the witness give a
description and how does that description compare to the defendant? How much time
passed between the event and the time when the witness identified the defendant? Was
the witness asked to pick the perpetrator out of a group? Did the witness ever fail to
identify the defendant? [¶] Did the witness ever change his or her mind about the
identification? How certain was the witness when he or she made an identification? Are
the witness and the defendant of different races? Was the witness able to identify the
defendant in a photographic or physical lineup? Were there 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[se]
crime[s]. If the People have not met this burden, you must find the defendant not guilty.”
(Emphasis added.)


                                             13
in his closing argument. Citing research and cases from other states on the reliability of
eyewitness identification, defendant argues that there is no established correlation
between a witness’s certainty and the accuracy of that identification and jurors do not
generally understand that eyewitness confidence is not a reliable predictor of accuracy.
“To the extent that CALCRIM No. 315 perpetuates this myth,” defendant contends, the
instruction “is erroneous.”
       As an initial matter, we address the Attorney General’s contention that defendant
forfeited any claim of error by failing to object or request modification of this instruction
in the trial court. Pursuant to section 1259, we may review any claim of instructional
error that affects a defendant’s substantial rights, without regard to whether an objection
was made below. “Ascertaining whether claimed instructional error affected the
substantial rights of the defendant necessarily requires an examination of the merits of the
claim . . . .” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) We will, therefore,
address defendant’s contention, but conclude it has no merit.
       In People v. Wright (1988) 45 Cal.3d 1126, 1141 (Wright), the Supreme Court
expressly approved a version of CALJIC No. 2.92, the predecessor to CALCRIM No.
315, that told the jury to consider the degree of certainty in assessing the reliability of
eyewitness identification evidence.7 (Accord, People v. Johnson (1992) 3 Cal.4th 1183,
1231-1232 (Johnson), superseded by statute on another ground as noted in Verdin v.
Superior Court, supra, 43 Cal.4th at p. 1106.) “We hold that a proper instruction on
eyewitness identification factors should focus the jury’s attention on facts relevant to its
determination of the existence of reasonable doubt regarding identification, by listing, in
a neutral manner, the relevant factors supported by the evidence. [¶] The instruction
should not take a position as to the impact of each of the psychological factors listed.”
(Wright, supra, 45 Cal.3d at p. 1141.) Further, “the listing of factors to be considered by
the jury will sufficiently bring to the jury’s attention the appropriate factors, and . . . an


       7
         CALJIC No. 2.92 instructs the jury to consider 13 enumerated factors including
“[t]he extent to which the witness is either certain or uncertain of the identification.”


                                               14
explanation of the effects of those factors is best left to argument by counsel, cross-
examination of the eyewitnesses, and expert testimony where appropriate.” (Id. at p.
1143.)
         The certainty factor in CALCRIM No. 315 is indistinguishable in substance from
that set forth in CALJIC No. 2.92 and approved in Wright and Johnson. Notwithstanding
defendant’s claim that courts in other states have rejected witness certainty as a valid
factor for a jury to consider in deciding the reliability of eyewitness identification
testimony, we are bound by California Supreme Court precedent, and thus find no error.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
D.       Prosecutorial Misconduct.
         Finally, defendant contends the prosecutor engaged in misconduct during closing
arguments when he impermissibly vouched for the credibility of two of the witnesses,
Mitchell and Raya.
         In closing, the prosecutor argued: “What we do want is, we want credible
testimony from people about what they observed, so you could imagine that when
someone goes through an event like Ms. Mitchell went through, she’s not keeping track
of time; she’s not making measure of distances, but when she’s got that person laying
[sic] on top of her face-to-face, inches away, jamming a gun into her side, that face is
burned into her memory.
         “And she sat here in front of you and she pointed to the defendant, I don’t know
how many times, I don’t know how many different ways, and said, ‘I don’t have any
doubt that that is the person that robbed me at gunpoint on that day,’ that’s the way you
want your system to work, so someone like that can get justice.
         “Let’s talk about the sort of person that you would have to believe Ms. Mitchell to
be in order for her to say those sort of things under oath and not really know it for sure.
She understands, and I hope you remember this little line of questioning that I tried to go
through with each Ms. Mitchell and Mr. Raya, about whether or not they understood just
generally the consequences of someone being identified as a robber being brought to trial
and that sort of thing.


                                              15
       “The point of that was very specific, and that is that it would take an evil, horrible
person to sit up there on the witness stand, knowing generally what’s at stake in this sort
of situation, and without being a hundred percent sure, even though they’re testifying that
they’re a hundred percent sure, point to him and say, ‘He’s the one that robbed me.’ That
would take a soulless, horrible person, and whatever evidence you have in this case, there
is no evidence, or none reasonably, that Ms. Mitchell is that sort of human being that
would do that to Mr. Webb, (indicating), unless she was sure.
       “She wasn’t so angry about what happened that she wanted to have someone held
responsible. She saw him do it, and she told you about it, and you should convict him on
it. It’s as simple as that, if the system works.
       “The same thing is true for Mr. Raya. . . .”
       “The standards governing review of misconduct claims are settled. ‘A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial
with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” ’
(Darden v. Wainwright (1986) 477 U.S. 168, 181; see People v. Cash (2002) 28 Cal.4th
703, 733.) ‘Under state law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally unfair trial.’ (People v. Alfaro
(2007) 41 Cal.4th 1277, 1328.) ‘In order to preserve a claim of misconduct, a defendant
must make a timely objection and request an admonition; only if an admonition would
not have cured the harm is the claim of misconduct preserved for review.’ (Ibid.) When
a claim of misconduct is based on the prosecutor’s comments before the jury, ‘ “the
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.” ’ (People v. Smithey (1999)
20 Cal.4th 936, 960, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.)” (People
v. Friend (2009) 47 Cal.4th 1, 29.)
       Defendant did not object to the prosecutor’s statements and did not request that the
jury be admonished, and he has, therefore, forfeited these claims on appeal. (See People
v. Alfaro, supra, 41 Cal.4th at p. 1328.) Attempting to avoid this result, defendant first


                                              16
contends the issue is preserved because he raised it in his motion for new trial. However,
such argument was not itself timely.8 “It is well settled that making a timely and specific
objection at trial, and requesting that the jury be admonished (if jury is not waived), is a
necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal.
[Citations.] ‘The primary purpose of the requirement that a defendant object at trial to
argument constituting prosecutorial misconduct is to give the trial court an opportunity,
through admonition of the jury, to correct any error and mitigate any prejudice.’
[Citation.]” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328, emphasis added.)
       Second, defendant contends an admonition would not have cured the harm caused
by the misconduct. The record does not support this argument. Shortly before the
portion of the argument defendant is now challenging, defense counsel objected on a
different ground, and his objection was sustained. Shortly after the now-challenged
remarks, defense counsel again raised an objection. After a brief colloquy, the court
overruled the objection, noting “I’ve already indicated to the jury that I will be giving
them the law regarding how to interpret witness testimony . . . .” The court considered
and ruled on various objections by both sides during closing arguments. There was no
reason for defense counsel to think that any objection would have been futile or that an
admonition could not cure any perceived harm. On the contrary, an appropriate
admonition would have corrected any error.
       But even reaching the merits, the contention fails. “To prevail on a claim of
prosecutorial misconduct based on remarks to the jury, the defendant must show a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly

       8
        Defendant’s prosecutorial misconduct argument in his motion for new trial was
based on alleged references by the prosecutor to defendant’s failure to present a defense,
so-called Griffin error (Griffin v. California (1965) 380 U.S. 609, 615). Arguably, this
was insufficient to preserve the claim defendant seeks to raise on appeal for the additional
reason that it was not even based on the same ground (misconduct by vouching for
witnesses). (See e.g., People v. Hill (1998) 17 Cal.4th 800, 820 [a specific objection on
the same ground is required to preserve an issue of prosecutorial misconduct for appeal].)


                                             17
infer’ that the jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970,
disapproved on another point in People v. Doolin (2009) 45 Cal.4th 930, 421, fn. 22.)
“As a general matter, ‘[i]mpermissible “vouching” may occur where the prosecutor
places the prestige of the government behind a witness through personal assurances of the
witness’s veracity or suggests that information not presented to the jury supports the
witness’s testimony.’ (People v. Fierro (1991) 1 Cal.4th 173, 211, overruled on another
ground in People v. Thomas (2012) 54 Cal.4th 908, 941.) Similarly, evidence of a
prosecutor’s subjective motivations when prosecuting a case is not relevant, for ‘[i]t is
misconduct for prosecutors to bolster their case “by invoking their personal prestige,
reputation, or depth of experience, or the prestige or reputation of their office, in support
of it.” [Citation.] Similarly, it is misconduct “to suggest that evidence available to the
government, but not before the jury, corroborates the testimony of a witness.” [Citation.]
The vice of such remarks is that they “may be understood by jurors to permit them to
avoid independently assessing witness credibility and to rely on the government’s view of
the evidence.” [Citation.]’ (People v. Bonilla (2007) 41 Cal.4th 313, 336.)” (People v.
Seumanu, supra, 61 Cal.4th at pp. 1329-1330, fn. omitted.)
       Defendant concedes that the prosecutor, by his comments, was not attempting to
bring in evidence from outside the record. Rather, defendant contends the prosecutor
personally vouched for the witnesses’ credibility, placing the prestige of the government
behind them, and infringing on defendant’s right to have the jury make an independent
credibility determination. We disagree. Although the prosecutor urged the jury to
believe Mitchell and Raya, the argument was based on their demeanor and testimony at
trial. Based on the record, the prosecutor could reasonably argue that Mitchell would not
have identified defendant repeatedly and testified confidently that he was the robber if
she had any doubt. “[S]o long as a prosecutor’s assurances regarding the apparent
honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and
the inferences reasonably drawn therefrom, rather than any purported personal
knowledge or belief,’ [his] comments cannot be characterized as improper vouching.


                                             18
[Citations.]” (People v. Frye, supra, 18 Cal.4th at p. 971.) Moreover, contrary to
defendant’s argument, the prosecutor did not suggest that “only a ‘soulless, horrible’
person could possibly be mistaken in their identification . . . .” The prosecutor’s
comments did not address the possibility that the eyewitnesses made a mistake,
understandably, since mistake was the defense theory. We find the complained-of
remarks to be proper comment on the evidence at trial and reasonable inferences flowing
from that evidence, and not improper vouching by the prosecutor.
                                      DISPOSITION
       The judgment is affirmed.




                                                  _________________________
                                                  Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




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