People v. Ruiz CA4/3

Filed 12/27/21 P. v. Ruiz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G060381

v. (Super. Ct. No. C1648496)

EDDIE RUIZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Santa Clara County, Julia
L. Alloggiamento, Judge. Affirmed.
Cliff Gardner and Brooke Acevedo for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting Attorney
General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence,
Senior Assistant Attorney General, Catherine A. Rivlin and Bruce M. Slavin, Deputy
Attorneys General, for Plaintiff and Respondent.
 Eddie Ruiz appeals from a judgment after a jury convicted him of first
degree murder and being a misdemeanant in possession of a firearm and found true he
personally used a firearm. Ruiz argues he received ineffective assistance of counsel, the
trial court erred in instructing the jury, and there was cumulative error. None of his
contentions have merit, and we affirm the judgment.
FACTS
I. Substantive Facts
Kiahra C. and her husband, Christopher D., went to First Street and Willow
Street in San Jose for Kiahra to work as a prostitute. Christopher sat nearby in their car,
which was parked at a laundromat, while Kiahra walked on First Street.
David M. propositioned Kiahra. They walked to his car—David sat in the
driver’s seat, and Kiahra sat in the passenger’s seat. David put the key in the ignition,
and they talked.
Minutes later, the driver’s side door opened, and the car’s interior lights
illuminated. Kiahra leaned forward and saw a man wearing a black jacket and black
gloves; she thought he was a police officer.
The man asked David for his identification. David said they had not done
anything wrong. Kiahra became suspicious the man was not an officer and asked him
what was wrong. The man asked Kiahra to wait a moment and continued to ask for
David for his identification.
As David produced his wallet, he asked the man to see his badge. The man
grabbed the wallet, and after a brief struggle over the wallet, he ran away. David chased
the man. Kiahra got out but stayed next to the car.
With David in pursuit, the man turned and shot him. The man ran towards
the corner, walked when he saw David was not following him, and ran across the street
towards the laundromat. David turned around and walked towards Kiahra while holding

2
his chest. David collapsed in the parking lot, and Kiahra ran to him before going to get
help.
Christopher heard a loud noise and got out of the car. He saw a man, who
appeared scared and panicked, run by him. The man was wearing a dark leather jacket.
Kiahra spoke to the 911 dispatcher as the police arrived. She described the
man as a Caucasian male in his 20s wearing a black suede jacket and black gloves. She
did not tell the dispatcher she was working as a prostitute because she did not want to get
into trouble.
Officer Ivan Barragan responded to the scene and performed CPR on
David, who was holding his identification. The paramedics arrived and pronounced him
dead. David’s wallet was on the ground near his car.
Officer Michael Alvarez looked for casings in the area but did not find any.
Later, a bullet was recovered from David’s body.
Officers interviewed four people at the scene. All described what the man
was wearing but none could identify him.
Detectives Wayne Smith and Brian McDonald arrived at the scene,
obtained surveillance video from six nearby businesses, and interviewed witnesses.
Christopher told the detectives that he thought he could identify the man and described
him to a police sketch artist.
Smith identified a suspect in all but one of the surveillance videos. Weeks
passed without identifying the suspect. Smith arranged the release of the surveillance
video from two businesses to obtain the public’s help in identifying the suspect.
The following week, Vanessa G. called the San Jose Police Department and
identified the suspect as Ruiz. Smith found a photograph of Ruiz wearing a shirt similar
to the one in the video. He obtained Ruiz’s address and cell phone number and wrote a
search warrant for his cell phone records.

3
 Smith prepared a six-pack photographic lineup using Ruiz’s driver’s license
photograph because his hair length was similar to the suspect’s hair length.
Eight weeks after the shooting, Smith showed the photographic lineup to
Christopher. He was unable to positively identify anyone, but he selected photograph
No. 2, Ruiz, as the person who most “close[ly]” resembled the man. He said the man was
wearing a black leather jacket and a black baseball hat.
Almost 10 weeks after the shooting, Smith showed the photographic lineup
to Kiahra. Smith moved Ruiz’s photograph from position No. 2 to position No. 3.
1
Kiahra positively identified photograph No. 3, Ruiz, as the shooter. At one point, Kiahra
could not decide between photograph Nos. 3 and 5 and said “I know I can’t ask you guys’
opinion.” After McDonald showed her surveillance video, Kiahra said the man shown in
the video was the man in photograph No. 3. When asked who the man in the video was,
Kiahra answered the shooter and added the man who robbed David. She said the man
was wearing all black, pants, jacket, hat, shoes, and gloves. She saw the man earlier that
evening but he was carrying the jacket. Near the end of the interview, Kiahra asked,
“[D]oes that person look that, like that person, the person that I can . . . .” McDonald said
they could not answer that.
Police officers arrested Ruiz a few days later. Officers searched Ruiz’s
home, a little less than a mile from the location of the shooting, and found black high-top
shoes, a baseball hat, a black leather jacket, black and clear latex gloves, and multiple
pairs of black pants. Officers also searched Ruiz’s parents’ house and found a loaded
firearm. Detectives eliminated two men as suspects who were identified by anonymous
callers.

1
The prosecutor played video recordings of Kiahra’s and Christopher’s
interviews for the jury.

4
II. Procedural Facts
An information charged Ruiz with the following: murder (Pen. Code,
§ 187, all further statutory references are to the Penal Code, unless otherwise indicated)
(count 1); and being a misdemeanant in possession of a firearm (§ 29805) (count 2). As
to count 1, the information alleged the robbery special circumstance (§ 190.2, subd.
(a)(17)), and the personal use of a firearm enhancement (§ 12022.53, subd. (d)). Kiahra
testified at the preliminary hearing in January 2018 and identified Ruiz as the shooter.
Ruiz was held to answer.
In his motions in limine (August 6, 2018), the prosecution disclosed that
after the shooting (July 28, 2016), Kiahra was cited on September 12, 2017, and arrested
on May 10, 2018, for loitering with the intent to commit prostitution. The prosecution
explained that another prosecutor in the office declined to file charges in either case due
to insufficient evidence. That prosecutor declined to file charges on the May 10, 2018,
incident on July 9, 2018, and on the September 12, 2017, incident on August 1, 2018.
The prosecutor noted there was a pending Sacramento County case against Kiahra for
loitering with the intent to commit prostitution (October 13, 2017). The prosecutor
requested the trial court rule on the admissibility of this evidence if Ruiz sought to
impeach Kiahra. The prosecution included the police report from the September 12,
2017, incident as an exhibit. The report indicated she told the arresting officer “she had
been a witness in a violent crime in San Jose that involved prostitution approximately a
year before.”
At an Evidence Code section 402 hearing (August 8, 2018), Ruiz’s trial
counsel stated she did not intend to impeach Kiahra with the citations. Counsel stated she
intended to question Kiahra about how “that would just go to her ability to perceive or
what was on her mind.” Counsel added, “But in terms of whether or not it shows a
willingness to lie or goes to her credibility, I don’t plan on asking her any questions of

5
that nature.” Counsel concluded she might seek to revisit the issue depending on how
Kiahra’s testimony went.
At trial on August 15, 2018, Kiahra testified she was “[v]ery confident”
Ruiz was the man who shot David “because [she could not] get his face out of [her]
head.” When the prosecutor asked her whether she had any doubt, Kiahra answered,
“No.” She again described what the man was wearing—“black leather jacket and gloves
and hat[]” and black pants. Kiahra said she saw Ruiz about 30 minutes earlier walking
on the opposite side of the street from her. The prosecutor again asked Kiahra whether
she had any doubt Ruiz was the man who shot David. Kiahra responded, “I’m positive.”
During cross-examination, Ruiz’s trial counsel questioned Kiahra about her
truthfulness to police officers and how well she perceived the man who robbed and shot
David. Counsel asked Kiahra whether she told officers, “‘He’s standing up, and, you
know, I’m in a car sitting down.’” She said, “Yes.” But Kiahra denied she told officers
she did not “‘see his face.’” After repeated questions and having her recollection
refreshed with a transcript of her conversation with officers, she agreed she told officers,
“It happened so fast.” When counsel refreshed her recollection again, Kiahra agreed she
told officers that one of the most distinguishing things about the shooter was his gloves,
but it was not the only thing.
On redirect examination, the prosecutor asked Kiahra whether he had
offered her any deals on any criminal case in exchange for her testimony. She answered,
“No.” When the prosecutor asked Kiahra whether she was positive Ruiz was the man
who shot David, she answered, “Yes.”
Christopher identified Ruiz as the man who ran past him. He was “90
percent sure.” On cross-examination, Ruiz’s trial counsel questioned Christopher about
whether the suspect ran or walked by Christopher and whether he stopped.
Video surveillance from before the shooting showed the suspect walking
south on First Street. The video from after the shooting showed the suspect running north

6
on First Street in the direction of Ruiz’s residence. Video surveillance also showed the
suspect running near where Christopher was standing.
An expert in cell phone site analysis testified Ruiz’s cell phone was in the
vicinity of the homicide at about the time it occurred, but the area covered by that tower
also included Ruiz’s residence.
A firearms’ expert testified she examined the firearm recovered from
Ruiz’s parents’ home and the bullet recovered from David. She could not tell whether
the gun fired the bullet.
The prosecutor offered the testimony of five witnesses who, when shown
surveillance video, said it was or looked like Ruiz. Four of them testified Ruiz said he
owned a .38 special handgun or a handgun, and shot a pistol at his grandfather’s house.
One of them testified that about the time of the shooting Ruiz said he needed his
paycheck to pay rent. Another one of them, Ruiz’s employer, testified he missed work
the day of the shooting and the following day.
Ruiz offered the testimony of Dr. Kathy Pezdek, an eyewitness
identification and cognitive science expert, who reviewed the case file in this case.
Pezdek stated there were 10 factors relevant to the identification in this case: distance
and lighting; exposure time; stress; disguises; cross-racial identification; time delay
between the event and the identification; whether the identification was immediate or
made by a process of elimination; whether there was a double-blind procedure; whether
there was identification confirmation; and the bias inherent in an in-court identification.
Pezdek explained how each of these factors undermined the identification. She opined
that if a witness only saw a person for a short period of time it is unlikely the witness
could identify the person nine weeks later. When Ruiz’s trial counsel asked about
certainty, Pezdek stated the following: “When eyewitnesses express certainty or their
confidence is indicative of how likely they are to be correct at the time when they make
the identification. Not at the preliminary hearing, not at the trial, not a long time

7
afterwards. But at the initial identification, photographic lineup in your hypothetical, a
witness’s expressed certainty is indicative of accuracy. If she picks him out, like I said
before, fast and confident is more likely to be correct. And so in that case, you know, if
she expresses questions like ‘Did I pick the right person?’ or something like that, that’s a
low level of confidence.” The expert stated she watched the video recording of the
detectives’ interview of Kiahra and she asked whether she picked the correct person.
Ruiz’s cell phone forensics expert testified that at the time of the shooting,
Ruiz’s cell phone could have been at the location of the shooting, at his residence, or
anywhere else within the cell tower’s sector.
During closing argument, the prosecutor stated the only issue the jury had
to decide was whether Ruiz was the man who shot David. The prosecutor said
surveillance videos showed Ruiz was in the area of the shooting. The prosecutor
repeatedly stated Kiahra was positive Ruiz was the man who shot David. The prosecutor
said the defense had not presented any evidence Kiahra had a motive to lie and falsely
identify Ruiz as the shooter. Ruiz’s trial counsel objected and there was an unreported
discussion. Back on the record, the trial court overruled counsel’s objection.
Ruiz’s trial counsel agreed with the prosecutor regarding the dispositive
issue. Ruiz’s trial counsel conceded Ruiz was the man shown in one of the surveillance
videos dressed like he was going to a dance club in the area. Counsel argued Kiahra’s
and Christopher’s identifications of Ruiz were completely unreliable and the
prosecution’s other evidence as to the shooter’s identity was inconclusive.
In rebuttal, the prosecutor noted Ruiz’s trial counsel conceded Ruiz was
shown in one of the surveillance videos. He added the most damning evidence was that
Kiahra identified Ruiz as the shooter from surveillance video that numerous other
witnesses testified showed Ruiz.
Out of the jury’s presence, the trial court allowed Ruiz’s trial counsel to
make a record of her objection. Counsel objected the prosecutor committed misconduct

8
by improperly vouching for Kiahra. The prosecutor disagreed, stating he was
commenting on the evidence presented. The trial court interpreted the prosecutor’s
comment as one based on the lack of any evidence Kiahra had a motive to lie. Ruiz’s
trial counsel stated, “[T]he prosecutor made a motion to preclude me from going into . . .
evidence . . . [Kiahra] ha[d] pending prostitution citations, and so that’s why I had a
particular concern about trying to do anything with regards to her credibility when we
knew there was evidence out there that might suggest that I’d been precluded from
getting into it.” The court responded its recollection was counsel did not intend to
question Kiahra about pending prostitution charges. The court said, “I don’t think it was
specifically seeking something the [c]ourt precluded.” The court wanted “to keep the
record clear on that[.]”
The jury convicted Ruiz of both counts and found true the robbery special
circumstance and firearm allegation. The trial court sentenced Ruiz to three years on
count 2 and life without the possibility of parole plus 25 years on count 1.
DISCUSSION
I. Ineffective Assistance of Counsel
Ruiz argues his trial counsel was ineffective for failing to question Kiahra
about whether she had a motive to lie, i.e., the dismissed and pending misdemeanor
loitering with the intent to commit prostitution cases. Any error was harmless.
“To obtain relief, he ‘must prove “‘that counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms, and that
counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists
that, but for counsel’s failings, the result would have been more favorable to the
defendant.’”’ [Citation.] A reasonable probability, the high court has said, ‘is a
probability sufficient to undermine confidence in the outcome.’ [Citation.]” (In re
Champion (2014) 58 Cal.4th 965, 1007.) “‘[A] court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the

9
defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.’ [Citation.]” (Ibid.)
“‘[A] defendant need not show that counsel’s deficient conduct more likely
than not altered the outcome in the case.’ [Citation.] ‘The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.’ [Citation.] Therefore, all [a defendant] must show “is that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ [Citation.] ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v.
Jones (2010) 186 Cal.App.4th 216, 244 (Jones), fn. omitted.)
Here, it is not reasonably probable the result of the proceeding would have
been different had Ruiz’s trial counsel tried to undermine Kiahra’s credibility with the
three misdemeanor loitering with the intent to commit prostitution charges
(misdemeanors). Although the photographic lineup was more than nine weeks after the
incident, Kiahra positively identified Ruiz before the misdemeanors. After positively
identifying Ruiz, she did express some uncertainty between photograph Nos. 3 and 5.
When McDonald showed her surveillance video from the area, she positively identified
the man in the video first as the man in photograph No. 3 and then as the man who shot
and robbed David. Photograph No. 3 depicted Ruiz. This was nearly one year before the
earliest misdemeanor offense. At this point, she had no motive to lie, and Ruiz does not
contend otherwise.
We agree with Ruiz this case turned on Kiahra’s credibility. The jury heard
evidence Kiahra was a prostitute. Ruiz’s trial counsel thoroughly cross-examined Kiahra
about her identification. Counsel questioned Kiahra about her statement to police the
incident happened so quick to cast doubt on how well she saw the suspect. Counsel also

10
questioned how she could have seen his face if she was seated in the passenger’s side
front seat and the suspect was standing at the driver’s side. Counsel also questioned her
about her statement the suspect’s most distinctive feature was his gloves, again to cast
doubt on how well she saw the suspect’s face. Additionally, Pezdek offered detailed
testimony that called into question the accuracy of Kiahra’s identification. She explained
an identification remote in time from the incident where the witness expresses uncertainty
calls into question the identification.
Additionally, Christopher identified Ruiz in a photographic lineup as the
person who most closely resembled the man who ran by him. Numerous witnesses,
people who knew Ruiz, testified the person shown in surveillance video from around the
time of the shooting was Ruiz or looked like Ruiz. Surveillance video also showed Ruiz
walking towards where David and Kiahra were parked before the shooting and running
away after the shooting. This evidence was so compelling that during closing argument
Ruiz’s trial counsel admitted Ruiz was the man in the video. Counsel argued however
that Ruiz was a man dressed like he was going to the nearby dance club, not a police
officer.
True, “It is long-standing law that a prosecution witness can be impeached
by the mere fact of pending charges. [Citation.] Such a situation is a ‘circumstance to
show that he . . . may, by testifying, be seeking favor or leniency. [Citations.]’
[Citation.] Although the charges pending . . . at the time constituted only misdemeanors,
the conduct underlying those charges was admissible to impeach despite the lack of a
conviction. [Citations.]” (People v. Martinez (2002) 103 Cal.App.4th 1071, 1080-1081.)
The fact the same prosecutor’s office dismissed two misdemeanors against
Kiahra shortly before trial and she faced another misdemeanor in a neighboring county
would not have undermined her credibility. This was not a case where she faced
significant time in custody if she were convicted of these offenses. Contrary to Ruiz’s
contention, Kiahra did not have “a strong motive to cooperate with the [prosecution].”

11
She testified the prosecution did not offer her any deals on any criminal case in exchange
for her testimony. This is not a case where cross-examining Kiahra about the
misdemeanors “‘“would have produced ‘a significantly different impression of [Kiahra’s]
credibility.’”’ [Citation.]” (People v. Dalton (2019) 7 Cal.5th 166, 221.) Our confidence
in the outcome of the proceeding is not undermined by the fact Ruiz’s trial counsel did
not attempt to impeach Kiahra with the misdemeanors. (Jones, supra, 186 Cal.App.4th at
p. 244.)
II. Jury Instructions
Ruiz asserts the trial court erred in instructing the jury. As we explain
below, the court did not err, and thus, a harmless error analysis with respect to the three
alleged errors is unnecessary.
A. CALCRIM No. 315, “Eyewitness Identification”
Ruiz contends the trial court erred by instructing the jury with CALCRIM
No. 315’s certainty factor. The Attorney General answers Ruiz forfeited this contention,
there was no error, and he was not prejudiced. The court did not err.
Ruiz claims this contention is not forfeited because any objection would
have been futile based on controlling law, the instruction affected his substantial rights,
and his trial counsel was ineffective for failing to object. Because Ruiz asserts
ineffective assistance of counsel, we address the merits. (People v. Williams (1998)
17 Cal.4th 148, 161, fn. 6 [court of appeal discretion to address issue party did not
preserve]; People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing claim’s merits
despite forfeiture because defendant asserted ineffective assistance of counsel].)
In People v. Lemcke (2021) 11 Cal.5th 644, 646 (Lemcke), our Supreme
Court rejected a federal and state due process challenge to CALCRIM No. 315, the
successor instruction to CALJIC No. 2.92. In that case, the prosecution’s theory rested
on a single eyewitness (victim) who identified defendant as the perpetrator twice before
trial during photographic lineups and at trial. (Id. at pp. 648-650.) The victim expressed

12
certainty in her identification. (Id. at pp. 649-650.) Defendant challenged the victim’s
identification both by calling an expert to testify about, inter alia, the weak correlation
between certainty and accuracy and by cross-examining the victim. (Id. at pp. 650-652,
660.) In language essentially identical to CALCRIM No. 315, the trial court instructed
the jury on 15 factors it should consider in evaluating the accuracy of an eyewitness
identification, including how certain the witness was when she made the identification.
(Id. at pp. 652, 654, fn. 5.) In closing argument, the prosecution focused on the victim’s
consistent identification and her certainty. (Id. at p. 652.) The jury convicted defendant,
and the Court of Appeal rejected his due process challenge and affirmed. (Id. at p. 653.)
In rejecting defendant’s due process challenges, the Lemcke court explained
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 [defendant’s] trial fundamentally unfair.
[Citations.]” (Lemcke, supra, 11 Cal.5th at pp. 646-647.) As to defendant’s argument the
certainty instruction lowered the prosecution’s burden of proof, the court opined “the
instruction does not direct the jury that ‘certainty equals accuracy.’ [Citation.] Nor does
the instruction state that the jury must presume an identification is accurate if the
eyewitness has expressed certainty. [Citation.] Instead, the instruction merely lists the
witness’s level of certainty at the time of identification as one of 15 different factors that
the jury should consider when evaluating the credibility and accuracy of eyewitness
testimony. The instruction leaves the jury to decide whether the witness expressed a
credible claim of certainty and what weight, if any, should be placed on that certainty in
relation to the numerous other factors listed in CALCRIM No. 315.” (Id. at p. 657.) The
court noted defendant was permitted to present expert testimony to combat any inference
that certainty correlates with accuracy and the trial court instructed the jury it must
consider the expert’s opinion (CALCRIM No. 332). (Id. at pp. 657-658.) The court

13
stated other instructions ensured the prosecutor’s burden was not lowered (CALCRIM
Nos. 220, 226, 315, & 332). (Id. at p. 658.)
The Lemcke court also rejected defendant’s argument the certainty
instruction deprived him of a meaningful opportunity to present a complete defense.
(Lemcke, supra, 11 Cal.5th at pp. 660-661.) The court noted defendant was allowed to
put on a vigorous defense on the issue of identity. (Id. at p. 660.) The court again cited
to the eyewitness identification expert who testified as to the weak correlation between
certainty and accuracy. (Ibid.) The court also stated defendant thoroughly cross-
examined the victim regarding her identification. (Ibid.) The Lemcke court concluded
listing witness certainty as one of 15 factors jurors should consider when evaluation an
eyewitness’s identification testimony did not amount to a due process violation. (Id. at
p. 661.)
Although the Lemcke court affirmed defendant’s conviction, it nevertheless
acknowledged that CALCRIM No. 315 “has the potential to mislead jurors” given “the
empirical research that ‘“under most circumstances, witness confidence or certainty is not
a good indicator of identification accuracy.”’ [Citations.]” (Lemcke, supra, 11 Cal.5th at
p. 665.) The court stated, “That raises particular concerns in a case like this one, where
the conviction was based almost entirely on the testimony of a single witness who
expressed certainty in her identification and had no prior relationship with the defendant.
[Citations.]” (Id. at p. 666.) The court requested the Judicial Council and its Advisory
Committee on Criminal Jury Instructions evaluate whether or how the instruction might
be modified and directed trial courts to omit the certainty factor from CALCRIM No. 315
unless a defendant requests otherwise. (Id. at pp. 647-648, 668-669.)
Based on Lemcke, CALCRIM No. 315’s certainty of identification factor—
“[h]ow certain was the witness when he or she made an identification?”—did not violate
Ruiz’s federal and state due process rights. As the Lemcke court stated, CALCRIM No.
315’s certainty factor did not equate certainty with accuracy and did not require the jury

14
to presume an identification was accurate just because a witness expressed certainty.
(Lemcke, supra, 11 Cal.5th at p. 657.) The certainty of identification factor was just one
of 15 factors the court listed for the jury to consider when evaluating the truthfulness and
accuracy of Kiahra’s and Christopher’s identification testimony. Additionally, like the
Lemcke court, we must evaluate the entire charge to the jury. (Lemcke, supra, 11 Cal.5th
at p. 658.)
The trial court here gave the jury instructions that undermine Ruiz’s claim
the certainty factor violated his due process rights. In fact, the court instructed the jury
with the same instructions the Lemcke court relied on in finding no due process violation.
The court instructed the jury Ruiz was presumed innocent and the prosecution bore the
burden of proving all elements of the offenses beyond a reasonable doubt (CALCRIM
No. 220). The court also instructed the jury that in evaluating witness testimony it “alone
must judge the credibility or believability of the witnesses” and that “[p]eople sometimes
honestly . . . make mistakes about what they remember” (CALCRIM No. 226). With
respect to evaluating eyewitness identification testimony, the court instructed the jury,
again, the prosecution had the burden of proving Ruiz guilty beyond a reasonable doubt
and if it failed its burden the jury must find Ruiz not guilty (CALCRIM No. 315).
Finally, the court instructed the jury it “must” consider Pezdek’s testimony Kiahra’s
identification was unreliable (CALCRIM No. 332).
Moreover, like in Lemcke, the certainty factor did not prevent Ruiz from
presenting a complete defense. The record before us establishes Ruiz presented a
vigorous defense on the identity issue. Ruiz offered the testimony of an eyewitness
identification expert who testified about certainty at the time of the initial identification.
Pezdek opined that a witness’s expressed certainty at the time of the initial identification
is indicative of accuracy and if a witness asks whether she picked the correct person,
there is “a low level of confidence[]” in the identification. Kiahra asked detectives
whether she picked the correct person. It is true Pezdek’s testimony on certainty was not

15
as exhaustive as the expert in Lemcke. But the jury had before it expert testimony, that it
had to consider, that called into question the certainty of Kiahra’s identification.
Additionally, Ruiz’s trial counsel thoroughly cross-examined Kiahra, and to
a lesser extent Christopher, about their identifications. Counsel questioned Kiahra about
how quickly the suspect opened the driver’s side door after they got into the car and how
well she saw the suspect from the front passenger seat to show her identification was
unreliable. Counsel elicited numerous inconsistencies between her statements to police
and her testimony in an attempt to cast doubt on her identification. Counsel focused on
the unreliability of both Kiahra’s and Christopher’s identifications during closing
argument.
Ruiz cites to the Lemcke’s court’s statement the certainty factor was
particularly concerning in cases where a single witness identifies a suspect with certainty
and whom the witness does not know. We note the court made this comment in the
section addressing reevaluating CALCRIM No. 315 for future cases. We also note, it did
not carry the day in Lemcke, and it similarly does not carry the day here.
In conclusion, “when considered ‘“in the context of the instructions as a
whole and the trial record”’ [citations], we conclude that listing the witness’s level of
certainty as one of 15 factors the jury should consider when evaluating an eyewitness
identification did not render [Ruiz’s] trial fundamentally unfair or otherwise amount to a
due process violation.” (Lemcke, supra, 11 Cal.5th at p. 661.)
B. CALCRIM No. 359, “Corpus Delicti: Independent Evidence of a Charged Crime”
Relying on People v. Rivas (2013) 214 Cal.App.4th 1410 (Rivas), Ruiz
asserts the trial court erred by instructing the jury with CALCRIM No. 359 because
identity was the central issue in the case. He claims that although “[n]one of [his]
statements admitted guilt on any level[,]” the instruction, which prohibits reliance on a
defendant’s inculpatory out-of-court statements alone as proof that a crime occurred, but

16
allows such reliance to prove identity as the perpetrator, impermissibly lowered the
prosecution’s burden to prove identity beyond a reasonable doubt. Not so.
2
Without objection, the trial court instructed the jury with CALCRIM No.
359 as follows: “The defendant may not be convicted of any crime based on his out-of-
court statement alone. You may rely on the defendant’s out-of-court statement to convict
him only if you first conclude that other evidence shows that the charged crime was
committed. [¶] That other evidence may be slight and need only be enough to support a
reasonable inference that a crime was committed. [¶] This requirement of other evidence
does not apply to proving the identity of the person who committed the crime. If other
evidence shows that the charged crime was committed, the identity of the person who
committed it may be proved by the defendant’s statement alone. [¶] You may not convict
the defendant unless the People have proved his guilt beyond a reasonable doubt.”
“‘[T]he relevant inquiry here is whether, “in the context of the instructions
as a whole and the trial record, there is a reasonable likelihood that the jury was misled to
defendant’s prejudice.” [Citation.] Also, “‘“we must assume that jurors are intelligent
persons and capable of understanding and correlating all jury instructions which are
given.” [Citation].’”’ [Citation.]” (People v. Landry (2016) 2 Cal.5th 52, 95 (Landry).)
CALCRIM No. 359 sets forth the corpus delicti rule, which requires the
prosecution to prove that a crime actually happened, apart from the defendant’s out-of-
court statement. (People v. Ledesma (2006) 39 Cal.4th 641, 721.) The evidence of a
crime may be slight and need not point to the defendant as the perpetrator. (Ibid.) The
corpus delicti rule does not require independent proof the defendant was the perpetrator.
(Ibid.) A defendant’s inculpatory out-of-court statements may, however, be relied upon

2
We will address the merits of Ruiz’s contention because we, like the
Attorney General, acknowledge the Rivas court held the issue was not forfeited because
the instruction affected defendant’s fundamental rights. (Rivas, supra, 214 Cal.App.4th
at p. 1421.)

17
to establish his or her identity as the perpetrator of a crime because the perpetrator’s
identity is not part of the corpus delicti. (Ibid.)
In Rivas, the trial court instructed the jury with an earlier version of
CALCRIM No. 359 that stated, “‘The identity of the person who committed the crime
[and the degree of the crime] may be proved by the defendant’s statement[s] alone.’”
(Rivas, supra, 214 Cal.App.4th at p. 1428, fn. 5.) The Rivas court held this “identity”
paragraph “requires reconsideration” because it “presents a risk of confounding the jury
by telling jurors that a defendant’s inculpatory extrajudicial statements, taken alone, do
not suffice to allow the jury to convict the defendant of a charged crime—and yet those
statements, again taken alone, are entertainable to prove the defendant’s ‘identity [as] the
person who committed the crime’ [citation], which to any juror can only mean the
defendant's identity as the perpetrator, i.e., the guilty party.” (Id. at p. 1429.) The Rivas
court distinguished this “identity” wording as “quite different” from the instruction our
Supreme Court upheld in People v. Foster (2010) 50 Cal.4th 1301 (Foster). (Rivas,
supra, 214 Cal.App.4th at p. 1429, fn. 8.)
In Foster, the trial court instructed the jury “‘[t]he identity of the person
who is alleged to have committed a crime is not an element of the crime nor is the degree
of the crime. Such identity or degree of the crime may be established by an admission.’”
(Foster, supra, 50 Cal.4th at p. 1344, fn. 19, italics omitted.) In People v. Rosales (2014)
222 Cal.App.4th 1254 (Rosales), the court disagreed with Rivas and held the “identity”
language in former CALCRIM No. 359 correctly stated the law and created no
reasonable likelihood of juror confusion. (Rosales, supra, 222 Cal.App.4th at pp. 1260-
1261.)
We need not decide whether Rivas or Rosales is correct because the trial
court here instructed the jury with a different version of CALCRIM No. 359 than was
used in those cases—a version that was revised in response to Rivas. (Judicial Council of
Cal., Crim. Jury Instns. (2019) Bench Notes to CALCRIM No. 359, p. 124.) This version

18
correctly states the law and is more akin to the instruction our Supreme Court upheld in
Foster than to the earlier revision of CALCRIM No. 359 questioned in Rivas and upheld
in Rosales. Thus, we conclude the court properly instructed the jury regarding the law
and the instruction was not likely to confuse jurors. Additionally, CALCRIM No. 359
did not lower the prosecution’s burden of proof. In fact, it expressly stated the
prosecution must prove the defendant’s guilt beyond a reasonable doubt.
Finally, we note Ruiz asserts his statements to co-workers that he had
experience with firearms and had financial difficulties near the time of the offense did not
establish his guilt and said “very little” about the shooter’s identity. We agree, which
may be why the prosecutor did not rely on these statements to establish his identity.
Ruiz’s acknowledgment his statements had little, if any, relevance on the issue of identity
undermines his claim the statements were inculpatory. The court also instructed the jury
as follows: “Some of these instructions may not apply depending on your findings about
the facts of the case. Do not assume just because I give a particular instruction that I am
suggesting anything about the facts.” Because Ruiz’s statements were not inculpatory on
the issue of identity, we are confident the jury disregarded the instruction. (Landry,
supra, 2 Cal.5th at p. 95 [jurors are intelligent and capable of understanding
instructions].)
C. CALCRIM No. 372, “Defendant’s Flight”
Ruiz argues “[t]he trial court violated [his] due process rights by giving
jurors an unbalanced instruction on post-crime conduct telling jurors they could convict
based on such conduct but not telling them they could acquit based on such conduct as
well.” (Capitalization omitted.) We disagree.
Without objection, the trial court instructed the jury with CALCRIM No.
372 as follows: “If the defendant fled immediately after the crime was committed, that
conduct may show that he was aware of his guilt. If you conclude that the defendant fled,

19
it is up to you to decide the meaning and importance of that conduct. However, evidence
that the defendant fled cannot prove guilt by itself.”
Assuming without deciding this issue is preserved, there was no error. Two
cases from our Supreme Court, which Ruiz does not discuss, dictate we reject his claim.
3
In People v. Green (1980) 27 Cal.3d 1 (Green), defendant argued the “trial court erred in
refusing to give his proffered instruction the absence of flight by a suspect may be
considered by the jury as circumstantial evidence that he had an innocent frame of mind.”
(Id. at p. 36, fn. omitted.) The court opined “the absence of flight is so ambiguous, so
laden with conflicting interpretations, that its probative value on the issue of innocence is
slight.” (Id. at p. 39.) The Supreme Court concluded the trial court did not err by
refusing to give the proffered instruction. (Ibid.)
In People v. Staten (2000) 24 Cal.4th 434 (Staten), the court again rejected
the argument the trial court erred by failing to instruct the jury it might consider the
absence of flight as a factor tending to show innocence. (Id. at p. 459.) The court held
the lack of parity in the flight instruction did not violate due process. (Ibid.) The court
clarified its conclusion in Green “also forecloses any federal or state constitutional
challenge based on due process.” (Ibid.) We are bound by our Supreme Court’s holdings
in Green and Staten the absence of flight instruction is proper and not unfair. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Ruiz’s reliance on Cool v. United States (1972) 409 U.S. 100, is misplaced.
In Cool, the Court concluded an accomplice instruction interfered with defendant’s right
to present a defense and lowered the prosecution’s burden of proof. (Id. at p. 102.) Cool
has nothing to do with CALCRIM No. 372 and does not control here.

3
Green was overruled on another ground in People v. Martinez (1999)
20 Cal.4th 225, 234.

20
III. Cumulative Error
“Under the ‘cumulative error’ doctrine, errors that are individually harmless
may nevertheless have a cumulative effect that is prejudicial. [Citations.]” (In re Avena
(1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due
process claim, and the test is whether the defendant received a fair trial. (Rivas, supra,
214 Cal.App.4th at p. 1436.) Ruiz’s cumulative error claim is without merit because we
have rejected all his individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057
[cumulative prejudice argument rejected because each individual contention lacked merit
or did not result in prejudice].)
DISPOSITION
The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

GOETHALS, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

21