People v. Payne CA2/7

Filed 7/6/21 P. v. Payne CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B302072

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA105936)
v.

MANOLETTE CHRISTOPHER
PAYNE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura L. Laesecke, Judge. Affirmed.
Roberta Simon, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen
and David E. Madeo, Deputy Attorneys General, for Plaintiff and
Respondent.
 _________________
Manolette Christopher Payne appeals from a judgment
entered after the jury convicted him of 11 counts of second degree
robbery and three counts of attempted second degree robbery.
The jury also found true the allegations Payne used a deadly or
dangerous weapon in the commission of the offenses. Payne’s
sole contention on appeal is that his due process rights were
violated because the trial court instructed the jury with CALJIC
No. 2.92 that an eyewitness’s level of certainty may be considered
when evaluating the reliability of the witness’s identification.
Following the Supreme Court’s decision in People v.
Lemcke (2021) 11 Cal.5th 644 (Lemcke), we requested
supplemental briefing from the parties. We now affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Robberies1
1. Robbery of Adan Corona (count 7)
On the night of February 21, 2017 Payne entered a pizza
restaurant in Long Beach where he placed an order. The
manager, Adan Corona, rang up Payne’s meal, and then Payne
pulled out a gun, pointed it at Corona, and told Corona to give
him the money in the cash register. Corona gave Payne about
$400, and Payne left. A surveillance video showing the incident
was played for the jury. On February 27 Corona identified Payne

1 The facts are taken from the evidence presented by the
People at trial. Payne did not call any witnesses or present
evidence.

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in a six-pack photographic lineup (photographic lineup).2 Corona
told Long Beach Detective Jacqueline Parkhill as to the lineup,
“This guy for sure.” Corona also identified Payne at trial.

2. Robbery of Shamsher Singh (counts 12 & 13)
Early on the morning of February 11, 2017 Payne entered a
convenience store in Carson. He approached the cash register
and asked the cashier, Shamsher Singh, for change for a dollar.
When Singh opened the cash register, Payne pulled out a gun
covered with a handkerchief and demanded Singh give him the
cash in the register. Singh was frightened and complied.
Alexander Cruz was also working as a cashier in the store and
saw Payne as he entered. Cruz recognized Payne as a regular
customer who came into the store two or three times every two
weeks.
Payne returned to the same convenience store shortly after
midnight on February 23 and again pulled out a gun. He said to
Singh, “Motherfucker, open the register.” Singh was scared and
gave Payne about $300. Payne then asked for cigarettes, which
Singh gave him, and Payne left. Surveillance videos from the
store showing the two robberies were played for the jury. On
February 28 Singh identified Payne in the photographic lineup as
the man who robbed him. Singh and Cruz both identified Payne
at trial.

2 It is undisputed that the witnesses to each of the robberies
were shown the same six-pack photographic lineup in which
Payne appears in photograph number 2.

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 3. Robbery of Efrain Pacheco Antonio (count 1)
On the night of February 18, 2017 Payne walked into a
convenience store in Long Beach. He asked the cashier, Efrain
Pacheco Antonio, to provide change for a dollar bill. When
Antonio opened the cash register, Payne pulled out a gun
wrapped in a handkerchief, pointed it at Antonio’s stomach, and
demanded Antonio give him money from the cash register.
Antonio gave Payne between $600 and $900. A surveillance
video captured the incident, and at trial Antonio identified Payne
in the video. On February 27 Antonio identified Payne in the
photographic lineup. Antonio also identified Payne at trial.

4. Robbery of Cesar Nieto (count 2)
On the morning of February 19, 2017 Payne ordered a
drink at a fast food restaurant in Long Beach. Payne handed
money to the cashier, Cesar Nieto, and Nieto opened the cash
register. Payne then pulled out a gun and demanded Nieto give
him the money. Nieto gave Payne $87 from the register. Two
surveillance videos depicting the incident were played for the
jury. On February 27 Detective Parkhill showed Nieto the
photographic lineup, but Nieto was unable to identify the robber.
Nieto stated, “I’m not sure I can identify.”
Perla Morales was working in the back of the restaurant at
the time of the incident. On February 28 Detective Parkhill
showed Morales the photographic lineup. Morales did not
hesitate in circling Payne’s photograph. Morales stated to
Detective Parkhill, “I remember he looked like that from the
quick look that I got.” However, at trial she acknowledged she
was not sure which of two Black male customers at the
restaurant was the robber.

4
 5. Robbery of Kivan Madrigal (count 3)
On the evening of February 19, 2017 Payne entered a fast
food restaurant in Long Beach and asked an employee, Kivan
Madrigal, to provide him with change for a dollar. When
Madrigal opened the cash register, Payne pulled out a gun
wrapped in a blue bandana and told Madrigal to “empty the
register.” Madrigal gave Payne all the cash in the register
(around $100), and Payne left. Two surveillance videos showing
the incident were played for the jury. On February 27 Detective
Parkhill showed Madrigal the photographic lineup, and Madrigal
identified Payne as the robber. Madrigal stated to Detective
Parkhill, “He has the same facial features” and Payne’s
photograph “looked exactly like the guy.” Madrigal also
identified Payne at trial as the robber.

6. Robbery of Muhammad Ellahi (count 4)
On the evening of February 20, 2017 Payne walked into an
ice cream shop in Gardena and asked an employee, Muhammad
Ellahi, for change for a dollar. Ellahi retrieved the change, and
Payne pulled out a black bag with a pistol protruding, covered by
a blue bandana. Payne said to Ellahi, “Put everything in the
bag.” Ellahi placed about $460 in the bag, and Payne left. Two
surveillance videos showing the incident were played for the jury.
On February 27 Ellahi was shown the photograph lineup
with Payne’s photograph, and he was unable to identify Payne.
Ellahi could not decide between two photographs. However,
Ellahi identified Payne as the robber shown in the surveillance
video at trial. When asked on cross-examination how he was able
to recognize Payne when he previously could not, Ellahi
responded that he was confused at the time he was shown the

5
photographic lineup, but he recognized Payne at the preliminary
hearing. He added at trial, “I know it was him.”

7. Attempted robbery of Matthew Fernandez and Dolly
Yonn (counts 5 & 6)
Later on the night of February 20, 2017 Payne entered a
fast food restaurant in Long Beach and requested employee
Matthew Fernandez provide him change. As Fernandez opened
the cash register, Payne said, “While you’re there, give me the
money in the register.” Payne then pulled out a gun wrapped in
a bandana, and Fernandez became scared. Fernandez’s coworker
Dolly Yonn was five to seven feet away at the time. Fernandez
told Yonn to run to the back, and the two locked themselves in
the bathroom. Two surveillance videos showing the incident
were played for the jury. On February 27 Long Beach Detective
Donald Collier showed Fernandez the photographic lineup;
Fernandez was not able to identify the robber. Fernandez told
Detective Collier it was “between no. 2 and no. 5. I feel it’s closer
to no. 5.”
On February 27 Detective Collier also showed Yonn the six-
pack photographic lineup. She identified Payne as the robber
and stated, “A man came in and proceeded to try to rob us at
gunpoint.” According to Detective Collier, Yonn did not hesitate
before identifying Payne. Yonn also identified Payne at trial as
the robber. She testified, “I remembered his face when I was
working that night.”

8. Robbery of Aruna Liyanage (count 8)
On the night of February 23, 2017 Payne entered a
convenience store and walked to the counter with $5 to pay for a
beer. Employee Aruna Liyanage opened the cash register, and

6
Payne screamed, “I need money. Don’t close the register.” Payne
also said he needed three boxes of cigarettes. Payne pointed a
gun at Liyanage, and Liyanage gave Payne almost $200 and
three boxes of cigarettes. Surveillance videos portraying the
incident were played for the jury. Liyanage was unable to
identify the robber in the photographic lineup.
Luis Hernandez was washing dishes in the back of the
store at the time of the robbery. He made eye contact with the
robber then saw Liyanage “put his hand up kind of a little bit and
step[] back . . . .” Hernandez did not learn Liyanage had been
robbed until later. Hernandez was not able to provide a
description of the man to the police.3

9. Robbery of Elizabeth Contreras4 (count 9)
On the evening of February 25, 2017 Payne entered a
clothing store in Long Beach. As he entered, the manager, Lo
Ann Hong, greeted him and saw his face. Payne placed a gun on
the counter, then pointed it at employee Elizabeth Contreras.
Payne told Contreras to take cash out of the register, and she
gave him about $300. Contreras focused on the gun during the
incident. Surveillance videos of the incident were played for the
jury. On February 27, 2017 Detective Parkhill showed Contreras

3 Although neither Liyanage nor Hernandez identified Payne
as the robber, Payne does not argue that substantial evidence
does not support the verdict on count 8. Further, our review of
the surveillance video of the robbery clearly shows the face of the
robber.
4 Contreras was listed in the information and verdict forms
as Contreras-Lopez, but she identified herself on the witness
stand as Elizabeth Contreras.

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the photographic lineup; she identified Payne as the robber.
When asked on cross-examination how she could remember
Payne’s face given that she was looking at his gun, she
responded, “I have a good memory. I remember somebody’s face.”
On February 27 Hong also identified Payne as the robber in the
photographic lineup. Hong stated as to Payne, “That’s him. . . . I
know it’s not any of the others. For sure.” Both Contreras and
Hong identified Payne at trial.

10. Attempted Robbery of Rosaura Perez (count 10)
On the morning of February 27, 2017 Payne entered a fast
food restaurant in Long Beach. He passed by a customer seated
at a table, Nicholas Mansfield, and Payne said, “What up, boss?”
Payne ordered food, then asked cashier Rosaura Perez for change
for a $10 bill. When Perez opened the cash register, Payne said,
“Give me the money,” and he pointed a gun at her. Mansfield
saw Payne point the gun at Perez, so he got up and stood behind
Payne. Payne then told Perez, “Never mind,” and he asked for
his money back and left. Mansfield followed Payne out to the
parking lot.
About two days later Mansfield identified Payne in the
photographic lineup as the robber. Mansfield did not hesitate in
making the identification. Mansfield also identified Payne at
trial as the robber. Perez was shown the photographic lineup,
but she was unable to identify the robber. She told the detective
she believed the robber looked like the person in photograph
number 5.

11. Robbery of Pedro Lugo (count 14)
On the evening of February 26, 2017 Payne entered a fast
food restaurant in Carson. He asked the cashier, Pedro Lugo, for

8
change for a dollar for the bus. When Lugo returned with the
change, Payne pointed a gun at him and demanded he go back
and bring the rest of the cash in the register. Lugo gave Payne
about $150 from the cash register. Payne then left in a black
two-door Mercedes. Surveillance videos played for the jury
depicted the incident. Two days later Lugo identified Payne as
the robber in the photographic lineup. Lugo identified Payne
immediately, stating, “I recognize [the] mustache and face.” Lugo
also identified Payne at trial.

12. Robbery of Jasdeep Bhabgal (count 11)
Later in the morning of February 27, 2017 Payne entered a
convenience store in Long Beach. He gave the cashier, Jasdeep
Bhabgal, $10 to pay for some items. When Bhabgal opened the
cash register, Payne pulled out a gun and demanded Bhabgal
give him all the money in the register. Bhabgal complied.
Surveillance videos showing the incident were played for the jury.
Bhabgal looked out the window and saw Payne get in a
black Mercedes soft-top convertible. Bhabgal was able to obtain a
partial license plate number, which he gave to the police. His
uncle Bhag Singh was also in the store and looked out the
window as Payne left. The uncle was able to obtain the rest of
the license plate number. Bhabgal gave the full license plate
number to the police. The police matched the license plate
number to a Mercedes registered to Payne. The next day
Bhabgal identified Payne as the robber in the photographic
lineup. He stated to the detective, “2 for sure. Without a doubt
no. 2.” He also identified Payne at trial as the robber.

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 13. The arrest of Payne
On February 27, 2017 police officers located Payne’s car
parked at a motel. The officers observed Payne leave the motel
and walk toward the Mercedes, where he was detained. Police
officers recovered $217 from Payne’s front pants pocket. Police
later searched Payne’s car and recovered a jacket with a BB gun
and several bandanas, among other items.

B. The Verdict and Sentence
The jury found Payne guilty of the second degree robbery
(Pen. Code, § 211)5 of Antonio (count 1), Nieto (count 2), Madrigal
(count 3), Ellahi (count 4), Corona (count 7), Liyanage (count 8),
Contreras (count 9), Bhabgal (count 11), Singh (counts 12 & 13),
and Lugo (count 14). The jury also found Payne guilty of the
attempted second degree robbery (§§ 211, 664) of Fernandez
(count 5), Yonn (count 6), and Perez (count 10). The jury found
true as to each count the allegation Payne personally used a
deadly or dangerous weapon, a BB gun (§ 12022, subd. (b)(1)).
In a bifurcated trial the trial court found true the special
allegations Payne was convicted of two prior serious or violent
felonies under the three strikes law (§§ 667, subds. (b)-(j),
1170.12), both of which were serious felonies within the meaning
of section 667, subdivision (a)(1), and he suffered two convictions
for which he served separate prison terms within the meaning of
section 667.5, subdivision (b). The trial court sentenced Payne to
an aggregate term of 468 years to life in state prison.
Payne timely appealed.

5 All further statutory references are to the Penal Code.

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 DISCUSSION

Payne contends the trial court violated his due process
rights in instructing the jury with CALJIC No. 2.92, which
advised the jury that in evaluating an eyewitness identification,
the jurors should consider “[t]he extent to which the witness is
either certain or uncertain of the identification.”6 Payne argues

6 The trial court instructed the jury with CALJIC No. 2.92,
as modified: “Eyewitness testimony has been received in this
trial for the purpose of identifying the defendant as the
perpetrator of the crimes charged. In determining the weight to
be given eyewitness identification testimony, you should consider
the believability of the eyewitness as well as other factors which
bear upon the accuracy of the witness’s identification of the
defendant, including, but not limited to any of the following: [¶]
The opportunity of the witness to observe the alleged criminal act
and the perpetrator of the act; [¶] The stress, if any, to which
the witness was subjected at the time of the observation; [¶] The
witness’s ability following the observation to provide a
description of the perpetrator of the act; [¶] The extent to which
the defendant either fits or does not fit the description of the
perpetrator previously given by the witness; [¶] The cross-racial
or ethnic nature of the identification; [¶] The witness’s capacity
to make an identification; [¶] Evidence relating to the witness’s
ability to identify other alleged perpetrators of the criminal act;
[¶] Whether the witness was able to identify the alleged
perpetrator in a photographic or physical lineup; [¶] The period
of time between the alleged criminal act and the witness’s
identification; [¶] Whether the witness had prior contacts with
the alleged perpetrator; [¶] The extent to which the witness is
either certain or uncertain of the identification; [¶] Whether the
witness’s identification is, in fact, the product of his or her own
recollection; and [¶] Any other evidence related to the witness’s
ability to make an identification.”

11
this instruction on witness certainty was erroneous given
scientific research showing that witness certainty has no
correlation with the accuracy of the identification.”7 Considering
the trial record as a whole, the trial court’s instruction on

7 The People contend Payne forfeited his claim of
instructional error because his attorney did not object to the trial
court’s instruction with CALJIC No. 2.92. We generally review
any claim of instructional error that affects a defendant’s
substantial rights whether or not trial counsel objected. (§ 1259
[“The appellate court may also review any instruction given . . .
even though no objection was made thereto in the lower court, if
the substantial rights of the defendant were affected thereby.”];
People v. Burton (2018) 29 Cal.App.5th 917, 923 [“‘Failure to
object to instructional error forfeits the issue on appeal unless the
error affects defendant’s substantial rights.’”]; People v. Bedolla
(2018) 28 Cal.App.5th 535, 544 [same].) Of course, “[w]e can only
determine if [a] defendant[’s] substantial rights were affected by
deciding whether the instruction was given in error and, if so,
whether the error was prejudicial.” (People v. Medina (2019)
33 Cal.App.5th 146, 154, fn. 7.) That is, if Payne’s claim has
merit, it has not been forfeited. The People are correct that the
Supreme Court in People v. Sánchez (2016) 63 Cal.4th 411, 461-
462 found the defendant had forfeited his challenge to the trial
court’s failure to modify CALCRIM No. 2.92 by not requesting a
modification. However, in light of the Supreme Court’s decision
in Lemcke raising potential constitutional issues with the
eyewitness identification instruction (depending on the record),
we review the merits of Payne’s contention the instruction
violated his constitutional rights on the record before us.
Because we decline to find forfeiture, we do not reach Payne’s
argument his attorney’s failure to object constituted ineffective
assistance of counsel.

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eyewitness identification did not violate Payne’s due process
rights.

A. The Supreme Court’s Decision in Lemcke
The Supreme Court in Lemcke, supra, 11 Cal.5th 644
rejected a due process challenge to CALCRIM No. 315, the
successor instruction to CALJIC No. 2.92,8 holding that “[w]hen
considered in the context of the trial record as a whole, listing the
witness’s level of certainty as one of 15 factors the jury should
consider when evaluating identification testimony did not render
[the defendant’s] trial fundamentally unfair.” However, the
Supreme Court observed that “[c]ontrary to widespread lay belief,
there is now near unanimity in the empirical research that
‘eyewitness confidence is generally an unreliable indicator of
accuracy.’” (Id. at p. 647.) The court explained, “As currently
worded, CALCRIM No. 315 does nothing to disabuse jurors of
that common misconception, but rather tends to reinforce it by
implying that an identification is more likely to be reliable when
the witness has expressed certainty. This is especially
problematic because many studies have also shown eyewitness
confidence is the single most influential factor in juror
determinations regarding the accuracy of an identification.”
(Ibid.) The court referred consideration of the instruction to the
Judicial Council and its Advisory Committee on Criminal Jury
Instructions “to evaluate whether or how the instruction might be
modified to avoid juror confusion regarding the correlation
between certainty and accuracy.” (Ibid.) The court also directed

8 Although CALJIC No. 2.92 and CALCRIM No. 315 differ
slightly, Payne does not contend the minor differences are
material to his argument.

13
that until the Judicial Council completes its review, “trial courts
should omit the certainty factor from CALCRIM No. 315 unless
the defendant requests otherwise.” (Id. at p. 648.)
In Lemcke, Desirae Lemcke and a Black male accomplice
(Charles Rudd) were charged with the robbery of Monica
Campusano. Campusano was walking down the hallway of a
motel when she encountered a woman standing outside a motel
room and a man standing just inside the doorway. The woman
asked to use Campusano’s cell phone, and as Campusano began
to retrieve her phone, the man struck Campusano in the face and
pulled her into the room. The man punched and kicked
Campusano repeatedly, causing her to lose consciousness. When
she regained consciousness, Campusano was alone in the room,
and her purse and phone were gone. (Lemcke, supra, 11 Cal.5th
at p. 648.) The responding police officer learned that the motel
room was registered to Lemcke, who matched the description
Campusano provided to a police officer at the scene. (Ibid.) The
police officer also learned that Lemcke had previously obtained a
no-contact order against Rudd, who matched Campusano’s
description of the man. (Ibid.) The officer created a six-pack
photograph lineup with a photograph of Rudd and showed it to
Campusano, who was “‘under anesthesia’” at the hospital. (Ibid.)
Campusano pointed to Rudd’s photograph and “stated that she
recognized his nose, mouth and jaw area.” She signed her name
by the photograph but spelled it incorrectly. (Id. at p. 649.)
Approximately three months later Campusano was shown
a photographic lineup including a photograph of Lemcke, and
Campusano selected Lemcke’s photograph as the woman in the
motel. Campusano also noted that the male assailant had a
tattoo on his neck. (Lemcke, supra, 11 Cal.5th at p. 649.) A
detective prepared a photographic lineup with Rudd’s tattoo and

14
the tattoo of Lemcke’s current boyfriend, without showing the
men’s faces. Six days later Campusano selected the photograph
of Rudd’s tattoo from the photographic lineup, explaining that it
looked like the one she remembered. (Ibid.) She also identified
the photograph of Rudd as the one the first officer had shown her
at the hospital. (Ibid.) The detective showed Campusano a
second six-pack photographic lineup that did not include Rudd.
Campusano stated she did not recognize anyone in the
photographic lineup and, pointing back to Rudd’s photograph,
“‘for sure it was [him].’” (Ibid.)
Campusano identified Rudd at trial, stating, “‘I remember
his face, his tattoo and his look, like he was looking with anger.’”
(Lemcke, supra, 11 Cal.5th at p. 650.) The defense called an
eyewitness identification expert, who opined as to witness
certainty that “current research suggested that ‘confidence’ can
be ‘useful’ when there has been a ‘fair lineup soon after the
event.’ However, ‘once outside that window and you go forward,
that moment in time when [the witness] made an [identification],
once you get past that, confidence is not related to accuracy in
any regard.’” (Id. at p. 651.) The trial court denied Rudd’s
request to strike the certainty factor from CALCRIM No. 315 in
instructing the jury. (Id. at p. 652.) The prosecutor in closing
argument directed the jury to CALCRIM No. 315 and noted that
Campusano “‘was certain the entire time.’” (Ibid.)
Reviewing the instruction in the context of the instructions
as a whole and the trial record, the Supreme Court concluded
Rudd’s trial was not “‘“so infuse[d] . . . with unfairness as to deny
due process of law.”’” (Lemcke, supra, 11 Cal.5th at p. 655.) The
Supreme Court rejected Rudd’s contention that CALCRIM No.
315 lowered the prosecutor’s burden of proof, citing the finding in
its prior opinion in People v. Sánchez, supra, 63 Cal.4th 411, 461-

15
463 (approving CALJIC No. 2.92) that “the instruction does not
direct the jury that “‘certainty equals accuracy.’” (Lemcke, at
p. 647.) The court observed that “the wording of the instruction
might cause some jurors to infer that certainty is generally
correlative of accuracy,” but it noted Rudd was allowed to present
expert witness testimony to rebut that inference, and the expert
opined that “the only time certainty may be useful in assessing
accuracy is when the identification is made in close temporal
proximity to the event and law enforcement has utilized
nonsuggestive procedures.” (Id. at pp. 657-658.)
The Supreme Court also noted that the jury was instructed
with CALCRIM No. 332 as to expert opinions that it “‘must
consider th[ose] opinions.’” (Lemcke, supra, 11 Cal.5th at p. 658.)
Further, the jury was instructed as to witness testimony that
“‘[p]eople sometimes honestly . . . make mistakes about what they
remember’” and that the jurors were responsible for “‘judg[ing]
the credibility or believability of the witnesses.’” (Id. at p. 658.)
In addition, the jury was instructed that the prosecution had the
burden of proving all elements of the crime, which the instruction
on eyewitness identity reiterated, stating, “‘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.’” (Ibid.)
The Supreme Court also rejected Rudd’s argument that the
certainty instruction violated his due process rights by denying
him a meaningful opportunity to present a complete defense,
pointing both to the expert testimony and defense counsel’s cross-
examination of the investigating officers that revealed problems
with Campusano’s identification, including that her first
identification was while she was under anesthesia in the hospital

16
and the second identification used the same photograph.
(Lemcke, supra, 11 Cal.5th at p. 660.)

B. The Trial Court’s Inclusion of the Certainty Factor Did Not
Violate Payne’s Constitutional Rights
Payne seeks to distinguish Lemcke on the basis that Payne
did not present an eyewitness identification expert. However,
Payne had an opportunity to present expert testimony but opted
not to do so. (Lemcke, supra, 11 Cal.5th at p. 658 [“Rudd was
permitted to present expert witness testimony to combat that
inference.”].)9
Payne also argues that witnesses in 13 of the 14 incidents
(all the robberies except that of Ellahi) identified Payne in the
photographic lineup as the robber, whereas in Lemcke only a
single victim identified Rudd. Payne draws a false distinction
because this is not a case where 14 witnesses testified about one
incident. Rather, as in Lemcke, one or at most two witnesses
testified as to a single incident. Many of the victims in this case
were either not certain about their identifications or could not
identify Payne.
As defense counsel emphasized in her closing argument,
Ellahi (count 4), Fernandez (count 5), Liyanage (count 8), and
Perez (count 10) could not identify Payne in the photographic
lineup. Fernandez instead stated he believed the robber was the
individual in position 5 in the photographic lineup. Yonn, who
was present with Fernandez and identified Payne as the robber,
was farther away from the robber and only learned there was a

9 Payne does not argue the failure of trial counsel to call an
eyewitness identification expert was ineffective assistance of
counsel.

17
robbery in progress when Fernandez yelled for her to run.
Hernandez was present, but he was at the back of the restaurant
washing dishes at the time of the robbery and did not identify
Payne. Perez, like Fernandez, believed the robber was the person
in photograph number 5. Mansfield identified Payne as the man
who robbed Perez, but defense counsel noted that Mansfield only
saw the robber from his position behind the robber, then
Mansfield followed the robber out of the restaurant. Likewise,
Nieto (count 2) was unable to identify Payne in the photographic
lineup. Although Morales was able to identify Payne as the
person who robbed Nieto, she was not able to identify Payne at
the preliminary hearing.
Defense counsel in her closing argument also emphasized
the other factors that made the identifications unreliable,
including that Antonio (count 1), Madrigal (count 3), Contreras
(count 9), and Bhabgal (count 11) were all scared and under
stress during the robberies (the second factor in CALJIC No.
2.92) and focused on the robber’s gun instead of his face. As to
the robbery of Contreras, the second witness (Hong) was
similarly stressed and “panicked.” As to count 7, defense counsel
noted that Corona was very focused on whether the robber was
using a BB gun or a real gun, distracting his attention. Singh
(counts 12 and 13) was likewise scared during the robberies. And
as to Lugo (count 14), he went back and forth to the register, and
defense counsel argued Lugo was therefore not facing the robber
during much of the incident. Thus, Payne had the opportunity to
present a complete defense on the issue of identity.
In addition, unlike in Lemcke where the principal evidence
against Rudd was the witness’s identification, here the jury
viewed surveillance video of 13 of the incidents (all but the
robbery of Perez). The prosecutor in his closing argument heavily

18
relied on the surveillance videos, replaying the videos as to each
robbery.10
Further, the court gave appropriate instructions on witness
testimony (as in Lemcke), including CALJIC No. 2.21.1 that
“[f]ailure of recollection is common” and “[i]nnocent
misrecollection is not uncommon.” The court also instructed the
jury with CALJIC No. 2.81 that “[i]n determining the weight to
be given to an opinion expressed by any witness, you should
consider his or her believability, the extent of his or her
opportunity to perceive the matter upon which his or her opinion
is based and the reasons, if any, given for it. You are not
required to accept an opinion but should give it the weight, if any,
to which you find it entitled.” The court also properly instructed
the jury, as in Lemcke, with CALJIC No. 2.90 that the People
must prove a defendant’s guilt beyond a reasonable doubt and
CALJIC No. 2.91 that “[i]f, after considering the circumstances of
the identification and any other evidence in this case, you have a
reasonable doubt whether defendant was the person who
committed the crime, you must give the defendant the benefit of
that doubt and find him not guilty.”
Under these circumstances, the trial court’s inclusion of the
certainty factor in the eyewitness identification instruction did
not violate Payne’s due process rights.

10 Although the prosecutor did not discuss witness certainty
in his initial closing argument, he did argue this factor (among
others) in his rebuttal argument, asserting that “[e]very witness
you have heard up there who did identify was certain, except for
the cashier, who wasn’t sure which person she identified.”

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 DISPOSITION

The judgment is affirmed.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

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