People v. Greeley

• Citation: 285 Cal.Rptr.3d 548,70 Cal.App.5th 609
• Decision Date: 19 October 2021
• Docket Number: H047281
• Parties: The PEOPLE, Plaintiff and Respondent, v. Salisa Cheyenne GREELEY, Defendant and Appellant.
• Court: California Court of Appeals

70 Cal.App.5th 609

285 Cal.Rptr.3d 548

The PEOPLE, Plaintiff and Respondent,

v.Salisa Cheyenne GREELEY, Defendant and Appellant.

H047281

Court of Appeal, Sixth District, California.

Filed October 19, 2021

As Modified October 28, 2021

Counsel for Plaintiff and Respondent: THE PEOPLE, Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Lisa H. Ashley-Ott, Deputy Attorney General

Counsel for Defendant and Appellant: SALISA CHEYENNE GREELEY, Paul R. Kraus, Oakland, By appointment of the Sixth District Appellate Program

ELIA, ACTING P.J.

Defendant Salisa Cheyenne Greeley was convicted by jury trial of first degree burglary ( Pen. Code, § 460, subd. (a) ).¹ The trial court suspended imposition of sentence, placed defendant on probation for three years, and imposed various fines and fees, and restitution. On appeal, defendant argues: (1) several instances of prosecutorial misconduct, individually and collectively, warrant reversal; (2) the trial court prejudicially erred by giving CALCRIM No. 315 [Eyewitness Identification]; (3) these errors cumulatively violated her due process rights; (4) the imposition of court assessments and a restitution fine without an ability-to-pay hearing violated her constitutional rights; (5) the three-year term of probation is now unauthorized; and (6) the court should strike the criminal justice administration fee and the probation supervision fee. We reject defendant's first four claims, but agree that the term of probation should be reduced to two years and that the unpaid portions of the criminal justice administration and probation supervision fees should be stricken. Accordingly, we reverse the judgment and remand with instructions.

I. BACKGROUND

A. The Prosecution's Case

Just before midnight on July 26, 2018, Karl Day looked out his second floor apartment window and observed two men and a woman "acting suspiciously." Day observed one of the men looking through the window of another apartment, while the other man and woman acted as lookouts. Day thought that the woman "look[ed] Asian." Eventually, Day saw one of the men pushing against the window. After Day heard the window break, he called 911. One of the men then climbed into the apartment. After police responded, Day told an officer that he "would not be able to recognize the suspects if [he] saw them again" based on "[e]nvironmental factors," meaning "the short amount of time" that he saw them, "the lighting," and "the distance" involved.

Officer Hymel Dunn responded to Day's 911 call within minutes. As he arrived on the scene, his headlights illuminated a woman, who Dunn later identified as defendant, lying in a prone position underneath a truck, with a large bag within arm's reach. The location was about 75 to 100 yards from the apartment. Dunn ordered defendant to come out from the under the truck and arrested her. The bag contained items that had been taken from the apartment.

At trial, Day identified defendant in court as looking like the woman he saw standing lookout. He admitted, however, that at the preliminary hearing, he had stated he " ‘couldn't be a hundred percent positive’ " that defendant was the person he had seen act as lookout. He testified at trial that the reason for his uncertainty at the preliminary hearing was because he "noticed [at the preliminary hearing] that [defendant] was not Asian," but rather "maybe Hispanic descent." He admitted that the revelation gave him pause, but reiterated that he was now "a hundred percent certain" that defendant, who he "originally thought was Asian," was the same woman he saw from his window.

On July 28, 2018, defendant made a recorded phone call from jail to a person named Jasmine. Excerpts from the call were played for the jury. Defendant told Jasmine that she could have avoided arrest, but she got scared: "But you know, like we're not thinking, I'm not thinking, and I'm the one that fuckin' gets in trouble, like fuck. You know like out of all people, I'm the one that fuckin' gets in trouble again. Like you know how stupid I feel, fool, I coulda got away, but I got scared, like I feel like a bitch. Like I shoulda never fuckin' hid under that fuckin' car. What the fuck was I—" Defendant also explained that "we got snitched on," meaning "[s]omebody called saying that there was, there was 3 boys or something like that. They thought I was a boy." Defendant continued: "But I don't know, I don't know how serious this shit is, ‘cause this shit could be hella serious, nigga, and they could be using these phone calls against me, like that's how serious it could be." Defendant concluded: "I don't give a fuck, ‘cause I'm the only one in trouble. Fuck, I'm only get myself in more trouble."

B. The Defense Case

Dr. Kathy Pezdek testified as an expert on eyewitness memory identification. She explained the three-stage process of memory as it relates to reliability: (1) perception or observation; (2) storage; and (3) identification and testing. The first stage relates to "[h]ow clearly did the eyewitness see a particular perpetrator to begin with." The second stage involves "the ability to hold on to that information over time." The third stage involves looking at under what conditions an eyewitness made an identification. Dr. Pezdek also elaborated on nine factors that she thought should be considered in evaluating the reliability of eyewitness memory: lighting; distance; exposure time; presence of distractions; presence of disguise; the cross-racial effect; the passage of time between observation and identification; the possibility of clothing bias; and the testing of eyewitness memory.

Dr. Pezdek was asked a hypothetical that mirrored the circumstances of Day's identification of defendant. Dr. Pezdek opined that the hypothetical was "a textbook example of suggestibility and it would be ridiculous if that sequence ever actually got played out in a real case." She explained that "[w]hat matters is what an eyewitness expressed as a level of certainty or confidence at their first opportunity to make an identification," and that subsequent expressions of confidence are less likely to reflect an accurate identification.

II. DISCUSSION

A. Prosecutorial Misconduct

Defendant argues that the prosecutor engaged in reversible misconduct during her direct examination of Officer Raymond McNair and during her cross-examination of Dr. Pezdek.

1. Officer McNair

a. Background

Defendant moved in limine to exclude "evidence of any prior convictions, bad acts, arrests, and/or law enforcement contacts of [defendant]." The trial court denied that motion. Defendant also moved to exclude references to "Case No. C1770443," which was a "case where [defendant was] convicted of ... two felonies and one misdemeanor ...." The court granted that motion.

Finally, defendant also moved to exclude statements she made to officers immediately following her arrest about her prior police contacts. The trial court granted the request with modifications. At the in limine hearing, defense counsel clarified that this request to exclude "is to the content within this five-page document, specifically when the officers—" The court then interjected: "[Defendant]'s statements recorded on a body camera. The officers tell each other [defendant] had been previously arrested, she has been previously to jail in Santa Clara County, and [defendant] answers affirmatively. [¶] So you're saying this encounter with the police officers with these specific questions is more prejudicial than probative?" Defense counsel answered, "Yes." The prosecutor indicated that she did not intend to put those statements into evidence, and the court then ruled that those statements "will be redacted." The parties then discussed the entirety of the body camera footage, and court ultimately decided that "anything that is post Miranda , I'm going to grant" the motion to exclude. The court later elaborated: "From where the officers talked to [defendant], and from where the officers ask, ‘Have you previously been to jail?’ to her giving them her [personal file number], that's excised." The court explained that "[a]ll these statements are irrelevant, all these statements are highly prejudicial ...."

On cross-examination, defense counsel asked Officer McNair, who was present when Dunn arrested defendant, whether he was "able to determine [defendant's] race and ethnicity" when he first contacted her. McNair stated, "Not entirely." Defense counsel then asked if McNair had prepared a police report. McNair responded, "Yes." Defense counsel asked if he recalled defendant's "race or ethnicity being Hispanic?" McNair responded, "No." Defense counsel asked Officer McNair to refresh his recollection by reviewing part of the police report. After doing so, Officer McNair testified that the arrest report listed defendant's "race or ethnicity" as "Hispanic."

On redirect examination, the prosecutor asked if that type of "biographical information, is that something you get from the person that you arrest, in this case, the defendant self-reporting?" McNair replied, "That's one of the places we can get that." The prosecutor continued: "In this case, did you confirm defendant's race or ethnicity as Hispanic through any additional tests or additional ways?" McNair explained: "When you run a party out over the radio, your computer will come back, the various hits on various databases they're run through. DMV being one of them, CJIC being the other, which is the information system used by the corrections system in our county. And there was a CJIC hit on her name." Defense counsel interjected, "Your honor, I'm going to object to this answer based on—could we approach?" The court replied, "No." The prosecutor then offered to "rephrase it and cut to the chase," and proceeded to ask, "[w]ere you able to...