P. v. Guzman

Filed 5/28/20 P. v. Guzman CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
EDGAR GUZMAN,
Defendant and Appellant.
B293017
Los Angeles County
Super. Ct. No. BA465263
APPEAL from a judgment of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed and
remanded with directions.
David Zarmi, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and
William N. Frank, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________

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A jury convicted defendant and appellant Edgar Guzman
of robbing ninth grader Byron E. On appeal, Guzman argues
(1) the trial court’s jury instruction on eyewitness identification,
CALCRIM No. 315, violated his constitutional rights by including
a “certainty” factor; (2) we should remand the case for the court
to exercise its discretion under Senate Bill No. 1393 (SB 1393)
to strike his five-year serious felony prior; and (3) the imposition
of a restitution fine and court fees violated his due process rights.
The Attorney General agrees remand is appropriate so the court
can exercise its discretion under SB 1393. We otherwise reject
Guzman’s contentions and affirm his conviction.
FACTS AND PROCEDURAL BACKGROUND
1. Guzman robs the teenage victim
On February 2, 2018, around 8:00 p.m., ninth grader
Byron E. and his friend Jose R. stopped at a store to buy some
sodas and chips, planning to take the bus home. Byron and Jose
saw Guzman urinating in a bush. Guzman got into a gray
Infiniti, the car “came around again,” and Guzman got out of
the passenger seat and asked the boys “if [they] were in a gang
and where [they] were going and where [they] lived.”
Guzman was within five or six feet of Byron—maybe as
close as an arm’s length. Guzman had his hand underneath
his shirt; Byron and Jose thought he might have a knife or a gun
and “he was going to do something to [them],” “cut [them] or hurt
[them].” Guzman demanded money. Guzman took his hand out
of his shirt, grabbed Byron’s red portable JBL Bluetooth speaker,
ran back to the gray car, and left.
A Hispanic woman was driving the gray car. She was
wearing a blue shirt and blue jeans.
Byron called the police. The boys gave the police a
description of the perpetrator and the car. Byron told police the
robber was wearing a red polo shirt with white lines, jeans, and

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a cap. Byron said the perpetrator had a tattoo in the middle of
his neck, under his chin on his throat.1
The officers who had taken the report from the boys started
driving around the area. Eventually they saw an older model
gray or silver Infiniti driving westbound. They followed the car.
It turned suddenly into an apartment complex and parked in a
small carport. A Hispanic woman wearing a blue shirt and
blue jeans got out of the driver’s side. A man later identified
as Guzman got out of the passenger side. He was wearing a red
polo shirt with white stripes and blue jeans; he had tattoos on
his neck.
Another officer found a red portable JBL Bluetooth speaker
in the front passenger seat of the Infiniti.
Later that night, officers took Byron and Jose—in two
separate cars—to look at Guzman, the woman in the blue shirt,
and a third person who had been in the car when police followed
it. The police told Byron the “person might be the person or
it might not be the person” and he “would have to be the one
to tell.” Byron and Jose identified the man—Guzman—as the
person who had taken Byron’s speaker. Guzman was still
wearing the same red and white striped shirt. Jose also
1 A responding officer later testified at trial that—as he
looked at Guzman in court—he did not see a tattoo “precisely on
his throat” “in the middle of his neck.” Guzman did have a tattoo
on the right side of his neck, “underneath his throat.” There also
were conflicts in the trial testimony about whether Byron had
told the police the perpetrator had tattoos on his arms as well.
The responding officer testified at trial—after observing Guzman
who, with the court’s permission, approached the witness box—
that Guzman had tattoos of a teardrop or an “H” on his face near
his eye and a tattoo of “H-P-S” on his chin. Guzman also had
tattoos on both hands and “multiple tattoos on his right forearm.”

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identified the woman in the blue shirt as the driver. Officers
gave Byron’s speaker back to him.
2. The charges, trial, verdict, and sentence
The People charged Guzman with robbery in violation
of Penal Code section 211.2 The People alleged Guzman had
suffered a prior strike for assault with a firearm, with a gang
enhancement. The case proceeded to trial in August 2018.
Guzman chose not to testify. The jury convicted him. At the
conclusion of a court trial, the court found Guzman’s strike prior
true.
The court denied Guzman’s Romero motion3 and sentenced
him to 11 years in the state prison. The court chose the midterm
of three years, doubled because of the strike prior, plus five years
for the serious felony prior. The court noted it did not have the
authority to strike the five-year prior but it might do so if the
law changed.4 The court imposed the mandatory minimum
restitution fine of $300 as well as court fees of $40, $30, and $10.
The court stayed a parole revocation restitution fine of $300.
Defense counsel did not object to the restitution fine or any of
the court fees.
DISCUSSION
1. CALCRIM No. 315 is correct under current law
Guzman argues CALCRIM No. 315 is “erroneous” and
the court violated his state and federal rights to due process of
law by instructing the jury with it. That instruction, entitled
“Eyewitness Identification,” gives the jury a nonexclusive list
2 References to statutes are to the Penal Code.
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4 The court did strike Guzman’s one-year prison prior under
section 667.5, subd. (b).

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of 15 “questions” to “consider” “[i]n evaluating identification
testimony” by an eyewitness. One of those questions is “How
certain was the witness when he or she made an identification?”
We review “the wording of a jury instruction de novo and
assess[ ] whether the instruction accurately states the law.”
(People v. Mitchell (2019) 7 Cal.5th 561, 579.)
The Attorney General contends Guzman forfeited
any objection to CALCRIM No. 315 by failing to request a
modification. The second supplemental reporter’s transcript that
we finally received from the superior court reflects that, indeed,
defense counsel neither objected to the court giving CALCRIM
No. 315 nor asked the court to modify it to delete the certainty
factor. Nevertheless, we exercise our discretion to consider
the issue on the merits.
In addition, we assume the jurors received the written
version of the instruction—including the certainty factor—even
though the reporter’s transcript reflects the trial court did not
read that factor to the jury as part of the instruction. (See People
v. Edwards (2013) 57 Cal.4th 658, 746 [if discrepancy between
written and oral versions of jury instructions, written
instructions provided to jury control].)
Guzman points to scientific studies and case law
recognizing a weak correlation between a witness’s certainty
and the accuracy of that witness’s identification. However,
our Supreme Court has upheld the inclusion of the certainty
language in the jury instruction on eyewitness identification.
People v. Sanchez (2016) 63 Cal.4th 411, 461-463 (Sanchez)
involved a challenge to CALJIC No. 2.92, the precursor to
CALCRIM No. 315. CALJIC No. 2.92 also listed a number of
factors for jurors to consider, including “the extent to which
the witness is either certain or uncertain of the identification.”
(Sanchez, at p. 461, fn. 7.) The Sanchez court found “no error

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and no prejudice” in the trial court’s use of CALJIC No. 2.92
to instruct the jury. The court stated,
“Studies concluding there is, at best, a weak
correlation between witness certainty and
accuracy are nothing new. We cited some of
them three decades ago to support our holding
that the trial court has discretion to admit
expert testimony regarding the reliability of
eyewitness identification. (People v. McDonald
(1984) 37 Cal.3d 351, 369.) In People v. Wright
(1988) 45 Cal.3d 1126, 1141, we held ‘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.’ We
specifically approved CALJIC No. 2.92,
including its certainty factor. (Wright, at
pp. 1144, 1166 [appendix].) We have since
reiterated the propriety of including this factor.
(People v. Johnson (1992) 3 Cal.4th 1183, 1231-
1232.)” (Sanchez, at p. 462.)
In 2018, our high court granted review in People v. Lemcke
(June 21, 2018, G054241) (nonpub. opn.), review granted
October 10, 2018, S250108, to consider whether including the
certainty language in the instruction violates a defendant’s due
process rights. Until and unless the Court decides otherwise, we
continue to follow and apply its well-reasoned and long-standing
precedent, reaffirmed most recently in People v. Sanchez, supra,
63 Cal.4th 411.

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2. The parties agree we should remand the case for
the trial court to exercise its discretion under SB 1393
As a consequence of SB 1393, sections 667, subdivision
(a)(1), and 1385, subdivision (b), were amended effective
January 1, 2019, to allow a court to exercise its discretion to
strike or dismiss a five-year prior serious felony enhancement.
The parties agree SB 1393 is retroactive (People v. Zamora (2019)
35 Cal.App.5th 200, 208) and, accordingly, we should remand
the case for the trial court to exercise its newly-granted
discretion. We of course express no opinion on how the court
should rule.
3. The trial court’s imposition of the mandatory
minimum restitution fine and court fees did
not violate Guzman’s constitutional rights
Guzman contends the trial court’s imposition of the
restitution fine and court fees violated his “right to due process
under the federal and California constitutions.”5 Guzman relies
on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
The issues raised in Dueñas and the many cases agreeing
and disagreeing with its analysis and holding in the 16 months
since it was decided are currently before our Supreme Court.
In granting review in People v. Kopp (2019) 38 Cal.App.5th 47,
review granted November 13, 2019, S257844, the Court identified
the issues to be briefed and argued: “Must a court consider a
defendant’s ability to pay before imposing or executing fines, fees,
and assessments? If so, which party bears the burden of proof
5 The Attorney General argues “the proper analytic
framework is that of the excessive fines clause of the Eighth
Amendment.” We need not decide which constitutional provision
is the correct one to guide our analysis as we find no
constitutional violation in any event.

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regarding defendant’s inability to pay?” Pending guidance from
our high court, we apply the law as it now stands.
First, unlike the defendant in Dueñas, Guzman did not
object to the restitution fine or assessments at sentencing.
Accordingly, he has forfeited his right to challenge the fine and
assessments. (People v. Rodriguez (2019) 40 Cal.App.5th 194,
206; People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila
(2009) 46 Cal.4th 680, 729.) We agree with our colleagues in
Division Eight that the forfeiture doctrine applies to the
restitution fine and court assessments imposed here under
the Penal and Government Codes. (People v. Bipialaka
(2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019)
33 Cal.App.5th 1126, 1153; but see People v. Castellano (2019)
33 Cal.App.5th 485, 488-489.)
Second, even if Guzman had not forfeited his argument,
we agree with our colleagues in Division Two that Dueñas was
wrongly decided. (People v. Hicks (2019) 40 Cal.App.5th 320,
327-329, review granted Nov. 26, 2019, S258946; see also People
v. Aviles (2019) 39 Cal.App.5th 1055, 1060, 1067-1069; cf. People
v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [urging caution
in following Dueñas and concluding the due process analysis
in Dueñas does not justify extending its holding beyond the
“extreme facts” that case presented].)
Third, in any event, Dueñas is distinguishable from
Guzman’s case on the merits. Dueñas was a homeless, disabled
mother of young children who was unable to work and was put on
probation because of traffic violations. (Dueñas, supra, 30
Cal.App.5th at pp. 1160-1162.) She faced incarceration because
of her inability to pay the restitution fine and court assessments
that ensnared her in a “cycle of repeated violations and escalating
debt.” (Id. at pp. 1162, 1164, fn. 1.) Guzman—unlike Dueñas—
does not face incarceration because of an inability to pay

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a restitution fine and assessments. He is in prison because he
robbed a young teen while simulating the possession of a weapon.
There is no indication he will suffer the same “cascading
consequences” Dueñas suffered as a result of a “series of criminal
proceedings driven by, and contributing to, [his] poverty.” (Id. at
pp. 1163-1164.)
DISPOSITION
We affirm Edgar Guzman’s conviction. We remand the
case to allow the trial court to consider any motion by Guzman
to strike his serious felony prior under SB 1393.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.

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