People v. McCullough CA1/1

Filed 2/28/22 P. v. McCullough CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent, A157271

v. (Contra Costa County
JAMES ROBERT M CCULLOUGH, Super. Ct. No.
51820091)
Defendant and Appellant.

THE PEOPLE,
Plaintiff and Respondent, A158089
v.
JARMON TREYVION DAVIS, (Contra Costa County
Defendant and Appellant. Super. Ct. No.
51820091)
ORDER MODIFYING
OPINION AND
DENYING REHEARING

[NO CHANGE IN
JUDGMENT]

THE COURT:
It is ordered that the opinion filed herein on January 31, 2022, be
modified as follows:

1
 1. On pages 8–9: Delete the two paragraphs beginning with “To begin
with” on page 8 and ending with “let alone, the Watson standard” on
page 9, and replace with the following sentence:
“Even assuming Detective Mahan’s challenged testimony was
problematic, we agree with the Attorney General that any error in admitting
the testimony was harmless under either the Chapman1 or Watson2
standard.” There is no change to the footnotes in the opinion.

2. On page 13, the first sentence of the first full paragraph: Delete the
word “Again” at the beginning of the first sentence. The sentence
should now read as follows: “Having failed to object to the instruction
and request that it be modified, defendants have forfeited any
challenge to the instruction on appeal.”

There is no change in the judgment.
The petition for rehearing is denied.

Dated: ________________________________
Humes, P. J.

1 Chapman v. California (1967) 386 U.S. 18.
2 People v. Watson (1956) 46 Cal.2d 818.

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Filed 1/31/22 P. v. McCullough CA1/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent, A157271

v. (Contra Costa
JAMES ROBERT M CCULLOUGH, County
Super. Ct. No.
Defendant and Appellant.
51820091)

THE PEOPLE,
Plaintiff and Respondent, A158089
v.
JARMON TREYVION DAVIS, (Contra Costa
Defendant and Appellant. County
Super. Ct. No.
51820091)

Defendants James Robert McCullough and Jarmon Treyvion Davis
appeal from a judgment of conviction, following a jury trial, of one count of
robbery. (Pen. Code, § 211.)3 The jury also found true a personal use firearm
enhancement as to Davis.
On appeal, defendants jointly contend the trial court erred in admitting
testimony regarding their cell phone numbers and in instructing the jury it

All further statutory references are to the Penal Code unless
3

otherwise indicated.

1
could consider “certainty” in determining whether a witness’s identification
was accurate. Separately, Davis additionally contends his Sixth Amendment
rights were violated when his attorney, during closing argument, assertedly
conceded guilt as to robbery and his Fifth Amendment rights were violated by
a stipulation admitting a prior juvenile adjudication. Separately,
McCullough contends the court improperly imposed a parole revocation
restitution fine.
The Attorney General concedes imposition of the parole restitution fine
was improper, and we agree. In all other respects, we affirm.
BACKGROUND4
The crime at issue occurred as the victim was walking home along a
trail from the North Concord Bart station, around 9:30 p.m. on September 6,
2018. The trail, which runs parallel to the highway, has three access points:
at the Bart station; at Olivera Road; and at Hamilton Street. The victim was
somewhere near the Hamilton Street access point and was walking south
toward Olivera Road when a man ran in front him and told him to stop.
Until that point, the victim had not seen anyone on the trail. The man then
signaled to two other men who approached the victim from behind. One of
these men had a gun and touched it to the victim just above his hip but below
his chest. The other man walked in front of the victim and began taking the
victim’s belongings, including his gold iPhone, wallet and backpack which
contained his laptop.
All three men were wearing face masks, but the victim was otherwise
able to give general descriptions of the men. The gunman was “skinny” and

4 We summarize here only the general background facts. We discuss
additional facts pertaining to the issues raised on appeal in the next section
as needed.

2
Black. The man who initially stopped him was tall and had a “larger build,”
“broad shoulders kind of thing,” and White. The third man was “Five six
seven. Five seven maybe,” “skinny,” and he was “Lighter than that, the other
male, white male so.” After the White “larger build” man took the victim’s
belongings, the gunman told the victim to walk back toward the Bart station.
After a short distance, the victim turned around and continued in the
direction of the three men. He then ran toward a vehicle, which happened to
be an unmarked police car, and a police officer stopped to help him. They
both saw the three men running away.
The officer, Concord Police Corporal Anthony Perry, had entered the
trail from the opposite end as the victim, via the Olivera Road access point.
He was travelling north toward the Bart station and did not encounter
anyone until he saw three men, who appeared to be together, walking toward
him. He took note of the men because one of them, later identified as Davis,
made a motion with his hands. The men appeared to be between the ages of
18 and 22. He noted one was Hispanic and had a “medium build about 6-foot-
1, had a very short hair cut” and the other was Black with a “thin build” and
wearing a tan jacket or hoodie. He did not note the race of the third man but
described him as “Medium build.” Perry later identified the Black male as
Davis. Perry “exchanged a greeting” with the men and they passed by him.
Around 15 seconds later, the victim ran toward Perry pointing in the
direction of Davis and his two companions. The victim, who appeared
“distressed,” “almost shouting” told Perry, “ ‘They just robbed me, they took
my backpack and my cell phone.’ ” When Perry turned to look, he saw the
three running, at a “full sprint” southbound in the direction of a gas station.
Perry broadcast a description over police dispatch of a Black male, “six-foot,
thin build, a Hispanic male, and a third subject medium build.” He also

3
noted one suspect was “wearing a tan hoodie the other one was wearing a red
hoodie.” He further stated all three were in their “18’s to early 20’s with
short hair styles” and ordered a perimeter set up. After speaking with the
victim, he also dispatched that one of the men was a White “male with a
muscular build.”
Just west of the gas station, a witness was sitting in a parking lot when
he saw two men, one Black and one White between the ages of “19 to about
24 or so” running through the gas station toward his car. As the men were
running, they “kept looking back.” The witness described the Black male as
“about five feet” with short hair, and the White male as “a little bit taller.”
The White male had a mask on, but it “didn’t cover the whole of his face,” and
he “was trying to take it off.” The White male asked to use the witness’s
phone but the men kept walking. The witness also saw the White male throw
his mask on the ground, and when the two left the area, the witness picked
up the mask from the road. The witness then saw and flagged down an
officer and relayed what he had just seen.
About 40 minutes after Corporal Perry sent out the broadcast, Concord
Police Officer Eugene Davis was assisting in setting up a perimeter when the
witness near the gas station flagged him down. The witness took Officer
Davis back to where he had been parked when he saw the two men. The
witness told Officer Davis “he saw the [B]lack male and a [W]hite male
disrobing their outer garments,” and that the White male had “discarded the
ski mask on the sidewalk next to his truck.” The witness then gave Officer
Davis the mask. Officer Davis also found a discarded dark-colored wallet,
which he left in its location so the responding K9 officer could “conduct a . . .
trail.”

4
 While speaking to the witness, Officer Davis was notified that two men,
later identified as Davis and McCullough, had been detained. The witness
agreed to do an in-field show up, and Officer Davis took him to where the
men were detained. After admonishing the witness, the witness identified
defendant Davis, saying “ ‘That’s him,’ ” “[w]ithout hesitation.” The witness
was uncertain if the White male was the same man he had seen earlier,
although he stated he had the “same build.” The witness later identified
defendant Davis in court.
In the meantime, Deputy Jeff Kellogg and K9 Officer Ronnie had
initiated a “trail” after sniffing the victim’s laptop and a pistol which had
been recovered along the Bart trail. The canine led Kellogg to the gas
station. While at the gas station, Kellogg was notified of a new location
where a wallet had been found. Kellogg and Ronnie “reinitiate[d]” the trail
from the wallet and went in the direction of the Highway 242 overpass.
“When Ronnie was trailing along . . . toward the 242 overpass,” he located a
tan jacket. The victim’s gold iPhone was in a pocket.
A second witness had also called police after two men ran in front of
her car on the Highway 242 overpass,5 causing her to slam on her breaks.
One male was White with “really short” hair. He was “shirtless, shoeless”
and “had some tattoos.” She estimated he was “approximately 35 years old,”
with a “bulkier than average, but more like muscl[ar]” build. She only saw
the hands of the second person, but identified that person as Black, with dark
skin, wearing “a hoodie and like baggy jeans,” and “skinnier than the White

5 The Highway 242 overpass is “at most” approximately “a third of a
mile to a half a mile” from the North Concord Bart trail, where the robbery
took place.

5
male.” The information provided by the witness was dispatched to officers in
the field.
While responding to the location in the dispatch, Officer Ameet Patel
also received a radio report from air support about “two males” standing
“approximately 100 feet, 150 feet to the east” of the overpass. Officer Patel
responded to that location, where he came upon defendants. It had been
about 40 to 45 minutes since Corporal Perry first made the broadcast about
the robbery. Both defendants were “sweating quite profusely.” And despite
the temperature being at the “highest . . . probably low 60s,” and the time
being approximately 10 p.m., the man later identified as McCullough did not
have on a shirt.
The District Attorney filed an information alleging one count of felony
second degree robbery (§ 211) as to both defendants. The information also
alleged two enhancements: as to Davis, that he personally used a firearm in
commission of the robbery (§ 12022.53, subd. (b)), and as to McCullough, that
he was armed with a firearm (§ 12022, subd. (a)(1)) during commission of the
robbery.
The jury found defendants guilty of robbery and found true the
enhancements. As to McCullough, the court struck the section 12022,
subdivision (a)(1) enhancement (for sentencing purposes) and sentenced him
to three years in state prison. As to Davis, the court sentenced him to 12
years in state prison, comprised of the low term of two years for the robbery
count plus 10 years for the firearm enhancement.

6
 DISCUSSION
Combined Claims
Cell Phone Evidence
At trial, Officer Patel testified that after defendants were arrested, he
seized cell phones from both and provided them to Corporal Perry who
booked them into evidence.
Detective Greg Mahan testified he was “requested to perform a follow-
up investigation” on the two phones. He first obtained a warrant, and then
gave the phones to Detective Scott Smith who performed a “forensic
extraction” by downloading the cell phone data for September 4-6, 2018,
which included the two days before and the day of the robbery. Detective
Smith provided the data to Detective Mahan along with the phone numbers
associated with both phones.
When the prosecutor asked Detective Mahan if those phone numbers
“correspond[ed] with [the] numbers listed for Jarmon Davis and James
Robert McCullough in their booking information,” defense counsel objected on
the ground of hearsay.
The court replied, “Ladies and gentlemen, I will allow the testimony
not for the truth of what was told, but what this witness did next as a result
of that information that he got.” Defendants made no objection to the court’s
nonhearsay, limited-purpose ruling.
Detective Mahan then answered, “Yes,” and went on to testify that the
data confirmed numerous exchanges between the two phones during the
requested date range. On the two days leading up to the robbery, there were
several calls and texts between the two phones. On the day of the robbery,
there were six calls between the phones, over a span of an “[e]ight-or nine-
hour period,” and four text messages. Detective Mahan did not testify as to

7
the content of those text messages. On the day of the robbery, the last phone
call between the two phones occurred at around 1 pm., and the last text
messages occurred around 4 p.m.
On appeal, defendants contend the trial court erred in allowing
Detective Mahan’s statement regarding the numbers in the booking
information for any purpose.
“An out-of-court statement is properly admitted if a nonhearsay
purpose for admitting the statement is identified, and the nonhearsay
purpose is relevant to an issue in dispute.” (People v. Turner (1994) 8 Cal.4th
137, 189.) However, “[a] hearsay objection to an out-of-court statement may
not be overruled simply by identifying a nonhearsay purpose for admitting
the statement. The trial court must also find that the nonhearsay purpose is
relevant to an issue in dispute.” (People v. Armendariz (1984) 37 Cal.3d 573,
585, italics added, superseded by statute on other grounds as stated in People
v. Cottle (2006) 39 Cal.4th 246, 255; see People v. Scalzi (1981)
126 Cal.App.3d 901, 906-907 [evidence of officer’s state of mind irrelevant
and thus inadmissible when it does not tend to prove or disprove an issue in
the case].)
Here, the trial court ruled Detective Mahan’s testimony was admissible
not for the truth of the matter, but for the nonhearsay purpose of explaining
what the detective did next in his investigation. Defendants maintain why
Detective Mahan did what he did next was irrelevant to any issue in the case
and therefore the testimony should have been disallowed entirely.
To begin with, defendants have forfeited the issue—they could have,
and should have, objected on relevancy grounds to the trial court’s limited
admission of the evidence. They did not. Instead, having succeeded on their
hearsay objection and obtained a ruling excluding the testimony for its truth,

8
they voiced no objection to its admission for a limited, nonhearsay purpose
and remained silent as Detective Mahan testified in accordance with the
court’s ruling. Having failed to make any relevancy objection, defendants
forfeited their challenge to the admission of this testimony for a limited
purpose. (See People v. Riel (2000) 22 Cal.4th 1153, 1184 [failure to object to
evidence as irrelevant and unduly prejudicial precluded defendant from
raising issue on appeal]; see also People v. Kipp (2001) 26 Cal.4th 1100, 1124
[objection to evidence on one ground does not preserve challenge on a
different ground on appeal]; Evid. Code, § 353.)
But even assuming defendants preserved the issue, and even assuming
Detective Mahan’s challenged testimony was problematic, we agree with the
Attorney General that defendants cannot demonstrate that prejudicial error
in allowing the testimony for a limited purpose under even the Chapman6
standard, let alone, the Watson7 standard.
Defendants insist the testimony regarding the phone numbers was “a
highly significant piece of evidence in the prosecution’s case,” pointing to the
prosecutor’s closing argument. (Capitalization omitted.)
During closing, the prosecutor told the jury, “You can also consider the
other links between defendant McCullough and defendant Davis. You heard
about their cell phones. You heard that before the robbery they were
regularly calling and texting with one another. There were a number of short
calls the day of the robbery, a number of text messages, and on the day before
they were regularly calling and texting each other. [¶] After the robbery, we
know they were together, and there were no calls, no text messages, they
don’t call each other. And that’s common sense. People don’t call and text

6 Chapman v. California (1967) 386 U.S. 18.
7 People v. Watson (1956) 46 Cal.2d 818.

9
each other when they’re together. [¶] During the time of the robbery, there
were no calls and text messages, so they go from communicating regularly via
call and text. And we know that when they’re together they don’t
communicate via call and text. You can reasonably infer then from the lack
of calls and text messages during the robbery that they were together.”
In his final closing, the prosecutor stated, defendant Davis’ counsel,
“practically conceded the robbery on Mr. Davis. He didn’t talk about it at
all. . . . [¶] And that’s a problem for James McCullough, right. Because if
Jarmon Davis did the robbery, and Jarmon Davis and James McCullough
were texting before the robbery and then they were together after the robbery
a mile up the road less than an hour after the robbery and they weren’t
corresponding with each other, doesn’t really matter who else they were
corresponding with, they weren’t corresponding with one another—that is
why I brought the correspondence between the two phones—you can infer
they were together.”
Notably, the prosecutor made no mention of Detective Mahon’s
challenged testimony. Moreover, that these two phones were seized from
defendants and the data retrieved from the phones showed phone and text
exchanges correlating with the events before, during, and after the robbery,
alone, is strong evidence the phones belonged to defendants.
There was also abundant other evidence defendants committed the
robbery. Witnesses described defendants and their clothing. Defendants
were arrested together, near the scene of the robbery, approximately 45
minutes after it occurred. The victim followed the three men, toward
Corporal Perry. Both the victim and Corporal Perry saw the suspects flee
toward the gas station. This was confirmed by the K9 officer who tracked
defendants’ path from the trail to the gas station, and from the gas station to

10
near where the defendants were arrested together. The K9 officer also found
clothing matching the reports of the perpetrators’ clothing, including a jacket,
near the location of their arrest. Plus, the victim’s cell phone was found
inside the jacket pocket.
Given the abundance of other evidence that defendants committed the
robbery, any error in admitting Detective Mahon’s testimony not for the truth
of the matter, but for the limited purpose to show whats he did next as a
result of that information, was harmless under Chapman, as well as Watson.8
CALCRIM No. 315
The second witness—who called police after two men ran in front of her
car on the Highway 242 overpass—testified that one male was White with
“really short” hair, and he was “shirtless, shoeless” and “had some tattoos.”
She estimated he was “approximately 35 years old,” with a “bulkier than
average, but more like muscl[ar]” build. She only saw the hands of the
second person, but identified that person as Black, with dark skin, wearing “a
hoodie and like baggy jeans,” and “skinnier than the [W]hite male.” At trial,
this witness testified she was “certain” that defendant McCullough was the
White male who ran in front of her car.
After close of evidence, the court instructed the jury. Both McCullough
and the district attorney requested CALCRIM No. 315. Without objection or
request for modification, the trial court instructed the jury as follows: “You
have heard eyewitness testimony identifying the defendant. As with any
other witness, you must decide whether an eyewitness gave truthful and
accurate testimony. [¶] In evaluating identification testimony, consider the

8 We therefore need not, and do not, address defendant’s assertion that
the challenged testimony was “testimonial” in character under Crawford v.
Washington (2004) 541 U.S. 36, and therefore prejudice must be evaluated
under the Chapman standard.

11
following questions: [¶] Did the witness know or have contact with the
defendant before the event? [¶] How well could the witness see the
perpetrator? [¶] What were the circumstances affecting the witness’s ability
to observe, such as lighting, weather conditions, obstructions, distance, and
duration of observation? [¶] How closely was the witness paying attention?
[¶] Was the witness under stress when he or she made the observation?
[¶] Did the witness give a description and how does that description compare
to the defendant? [¶] How much time passed between the event and the time
when the witness identified the defendant? [¶] Was the witness asked to pick
the perpetrator out of a group? [¶] Did the witness ever fail to identify the
defendant? [¶] Did the witness ever change his or her mind about the
identification? [¶] How certain was the witness when he or she made an
identification? [¶] Are the witness and the defendant of different races?
[¶] Was the witness able to identify other participants in the crime? [¶] Was
the witness able to identify the defendant in a photographic or physical
lineup? [¶] Were there any other circumstances affecting the witness’s ability
to make an accurate identification? [¶] The People have the burden of
proving beyond a reasonable doubt that it was the defendant who committed
the crime. If the People have not met this burden, you must find the
defendant not guilty.” (CALCRIM No. 315, italics added.)
Defendants now claim the trial court prejudicially erred in instructing
the jury with CALCRIM No. 315. Specifically, they maintain the court erred
in instructing the jury it could consider an eyewitness’s level of “certainty” in
evaluating identification testimony because “scientific studies” demonstrate
there is no relationship between the certainty of an eyewitness identification
and the accuracy of the witness’s testimony.

12
 Again, having failed to object to the instruction and request that it be
modified, defendants have forfeited any challenge to the instruction on
appeal. (People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez) [trial court
had no sua sponte duty to modify CALJIC No. 2.92 on identification to
exclude the certainty factor, and defendant therefore forfeited issue].)
In an attempt to avoid forfeiture, defendants assert they did not want
the instruction “modified,” but rather, wanted the instruction to “not be used
at all.” The record is to the contrary. McCullough requested CALCRIM No.
315, and Davis voiced no objection to it.
They further claim any objection would have been futile. While failure
to object may be excused when the governing law at the time affords no
legitimate ground for objection (People v. Rangel (2016) 62 Cal.4th 1192,
1215), there was, in fact, case law that could have supported the objection
they are now attempting to pursue on appeal. (See Sánchez, supra,
63 Cal.4th at pp. 495–498 (conc. opn. of Liu, J.) and the cases cited therein.)
Indeed, as of the time of trial, People v. Lemcke (2021) 11 Cal.5th 644
(Lemcke), which dealt with the witness “certainty” factor, had been pending
before the Supreme Court for six months. Accordingly, there is no doubt
defendants could have raised the issue in the trial court. They did not and
forfeited the issue. (See People v. Rodriguez (2019) 40 Cal.App.5th 194, 199
[“Rodriguez argues CALCRIM No. 315 violates his Fourteenth Amendment
due process rights because it tells the jury to consider eyewitness certainty.
Rodriguez’s counsel did not object at trial. This is forfeiture.”].)
In any case, even if defendants had not forfeited the issue, any error in
the instruction was harmless. In Sánchez, for example, the Supreme Court
ruled that in addition to defendant having forfeited the witness certainty
issue, any error in CALJIC No. 2.92 on identification was harmless because

13
the instruction “cited the certainty factor in a neutral manner, telling the
jury only that it could consider it. It did not suggest that certainty equals
accuracy.” (Sánchez, supra, 63 Cal.4th at p. 462.)
Five years later, the high court decided Lemcke, supra, 11 Cal.5th 644.
In that case, the defendant was convicted of assault and robbery. The
prosecution’s case turned on “testimony of the victim, who identified [the
defendant] as her assailant and confirmed that she had previously identified
[him] during a photographic lineup.” (Id. at p. 646.) After the prosecution
requested CALCRIM No. 315, defense counsel, citing to the concurring
opinion in Sanchez, objected to the instruction and requested the court
modify it by striking the eyewitness certainty factor. (Id. at p. 652.) The trial
court declined to do so, “explaining that the certainty language set forth in
CALCRIM No. 315 was consistent with the defense expert’s testimony that
confidence can be reliable under certain circumstances. The court
acknowledged the expert had cast doubt on the usefulness of certainty more
generally but concluded that the defense could raise those points at closing
argument.” (Ibid.)
On appeal, the defendant argued the “certainty instruction violated his
federal and state due process rights to fair trial [citations] because empirical
research has shown that a witness’s confidence in an identification is
generally not a reliable indicator of accuracy.” (Lemcke, supra, 11 Cal.5th at
pp. 646, 654.) Specifically, he asserted the instruction lowered the
prosecution’s burden of proof by “causing jurors to ‘equat[e] certainty with
accuracy, when science establishes otherwise,’ ” and the instruction denied
him a “ ‘ “meaningful opportunity to present a complete defense” ’ as to ‘why
the identification was flawed.’ ” (Id. at p. 657.)

14
 The Supreme Court rejected the defendant’s due process claims stating,
“When 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 [his] trial fundamentally
unfair.” (Lemcke, supra, 11 Cal.5th at p. 647.) Moreover, nothing in the
instruction on witness certainty “operates to ‘lower the prosecution’s burden
of proof,’ ” and “the instruction does not direct the jury that ‘certainty equals
accuracy.’ ” (Id. at p. 657.) 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. . . .” (Ibid.)
Additionally, the defendant in Lemcke was “permitted to call an
eyewitness identification expert who explained the limited circumstances
when certainty and accuracy are positively correlated,” and nothing in
CALCRIM No. 315, said the court, suggested the jury should ignore that
testimony. Indeed, the trial court “provided additional instructions” directing
the jury that it was required to consider the expert testimony. (Lemcke,
supra, 11 Cal.5th at p. 647.) Plus, the trial court had instructed that the
defendant was presumed innocent and the prosecution had the burden of
proving all elements of the crime beyond a reasonable doubt, which further
“undercut [the defendant’s] contention that the certainty language lowered
the prosecution’s burden of proof.” (Id. at p. 658.)
Next, the high court ruled there was “no merit” to the defendant’s claim
that he was denied a meaningful opportunity to present a complete defense.

15
Indeed, stated the court, the record showed the opposite—that the defendant
“put on a vigorous defense on the issue of identity.” (Lemcke, supra,
11 Cal.5th at p. 660.) He called an eyewitness identification expert, and he
had the opportunity to cross-examine the witness regarding her identification
and the investigating officers regarding the procedures used in photographic
lineups. (Ibid.)
Nevertheless, although the instruction did not violate the defendant’s
due process rights, our Supreme Court joined with other jurisdictions “in
acknowledging that this form of instruction has the potential to mislead
jurors.” (Lemcke, supra, 11 Cal.5th at p. 665.) In an exercise of its
supervisory powers, the court directed “trial courts to omit the certainty
factor from CALCRIM No. 315 until the Judicial Council has the opportunity
to consider how the language might be better worded to minimize juror
confusion on this point.” (Id. at p. 669.) In a footnote the court stated, “We
have previously distinguished the effect of the certainty instruction in cases
where a witness has expressed doubt, rather than confidence, about the
accuracy of the identification. (See Sánchez, supra, 63 Cal.4th at p. 462
[‘ “[certainty] instruction has merit in so far as it deals with the testimony of
a witness who expressed doubt about the accuracy of her
identification. . . .” ’].) The misleading effect we are concerned with here—
that the jury is prompted to believe there is a strong correlation between
certainty and accuracy despite empirical research showing just the opposite—
is not present when a witness has expressed doubt regarding the
identification.” (Lemcke, at p. 669, fn. 19.)
Although the Supreme Court has instructed trial courts to omit the
certainty factor unless the defendant requests it, any error in including that
factor in this case was not prejudicial given the overwhelming evidence

16
against defendants, which we have recounted above. Additionally, various
witnesses testified regarding the identity of defendants, with various levels of
certainty. For example, although the second witness testified she was
“certain” McCullough was the man who ran in front of her car near the
overpass, the first witness near the gas station testified he was not certain
the White male was McCullough although he had the “same build.” Finally,
the certainty factor was one of 15 factors, neutrally given to the jury, and the
court further instructed the jury that the People were required to prove
defendants’ guilt beyond a reasonable double.
Accordingly, on this record, any error in including the certainty factor
in the instruction on eyewitness identification was not prejudicial under
either Chapman or Watson.
Davis’s Claims
Defense Counsel’s Closing Argument
In his closing argument, Davis’s counsel focused almost exclusively on
the firearm enhancement.
Counsel stated:
“Okay. In this country there are—well, in this country we first say that
there’s no higher office than that of citizen. And as citizens, there are
two points where we stand in judgment of our government. First, when
we go to the polls and we vote for our elected leaders. And the second is
what 14 people in this box are doing right now.

“And very soon you’re going to go back in that deliberation room and
begin to discuss this case. And don’t forget that as you do that, there’s
a man, Mr. Davis, seated right now in that chair who is charged with
an enhancement that he did not commit.

“So let’s walk through how we both know that the government, the
prosecutor here, didn’t prove that personal use enhancement for the
firearm as to Mr. Davis and didn’t actually come close whatsoever.

17
“Let’s first start with [the victim]. And obviously when it comes to [the
victim], there’s one thing in this case I think everyone in this room
agrees on is that [he] was a true victim. Seems like a perfectly nice
guy. And he was put, through no fault of his own, into a situation that
was really scary, really unexpected, and happened incredibly quick.

“He was also put into this situation, through no fault of his own, with
three other individuals who were—who made the choice to cover
themselves up and did so in an environment with extremely poor
lighting, very difficult to see.

“And we also know that [the victim] has changed his story as to what
occurred and how he knows what he relayed to all of you when he was
on that witness stand. And we know it both from what he said on the
witness stand and from the two pieces of the phone call that he had
with . . . [an Inspector]. . . . [¶[] . . .[¶]

“. . . [I]f you recall when [the victim] was on the witness stand testifying
about the person with the gun, he testified that he made the
identification of that person as a [B]lack male through the skin of that
individual’s neck. And I asked him, how certain are you of that that
you saw the person’s neck and that that’s how you’re able to say the
person with [the] gun as a [B]lack person. And he said 90 percent. And
now we know on February [sic] 6th, that’s not what he said. We know
that his memory of this event has changed.

“Now, the prosecutor wants to put forth his memory as though it were a
movie, something you could just push play and it’s going to be the same
thing every time you watch it. But that’s not the case. Memory is a
tough thing. And we know because of this dynamic situation, because
of probably what he heard from Officer Perry when he was in the field,
and because of the nature of memory itself, that [the victim’s] memory
has changed.

“There’s certain things that no one is questioning. There’s no question
that he was robbed with a gun, there’s no question that there were
three individuals that robbed him with this gun, but his ability to
determine who each person was, who the respective players are is
absolutely questionable because you’ve heard it yourselves.

18
“His story has changed. And it’s his story and his story alone by which
the prosecutor is trying to link the personal use enhancement to Mr.
Davis, trying to say that Mr. Davis is the person that held that gun.

“Also keep in mind that while this occurred, we heard from [the victim]
that the person with the gun was actually behind him, that it would
have been incredibly difficult for [the victim] to see any portion of that
person regardless of whether they had a mask on based on where he
was positioned and especially in light of the fact there were unknown
individuals to his front.

“We also know that Officer Perry influenced [the victim’s] statement,
his testimony, his memory. And that’s through no fault of [the victim].

“[The victim] was put in an incredibly vulnerable position, terrifying
position, and immediately after that position—that situation occurred,
that crime occurred, he was put in contact with Officer Perry, someone
he was understandably looking to for protection, an authority figure.

“And while his mind is racing, while he is still living through the terror
of that event, Officer Perry is relaying information both to him and
through dispatch. And his brain is taking that information and trying
to incorporate it into what he just experienced, trying to make that
information a part of his narrative, something that he told you on the
witness stand, testified to on the witness stand as though it happened
to him, as though it were his memories. [¶] . . . [¶]

“So Corporal Perry on that witness stand, he described Mr. Davis
making an unusual motion, kind of this shimmying motion that I’m not
going to try to imitate while Mr. Davis was walking down the path with
these two other individuals.

“Now, let’s assume this robbery occurred. Why on Earth would Mr.
Davis be making that motion to a police officer moments after
committing this robbery?

“Well, one reasonable explanation is that it would provide an
opportunity for the other two people to ditch the gun and the laptop on
the trail, just throw it in the moment when Officer Perry was looking at
Mr. Davis and not them.

19
“So what can you infer from that? You can infer that Mr. Davis is not
the person who held the firearm, because he’s essentially acting as the
distraction so that the person who actually did have the gun during the
course of this robbery can get rid of it.

“I want to say something else about Officer Perry. Officer Perry, who
we heard a lot about when it comes to his training and experience with
firearms, he’s someone who’s been clearly interested in guns, raised
with guns. When he first saw the gun, he thought it was a replica, a
fake.

“Of course, I’m not going to get up here and argue the gun, in fact, was
a fake, but I do think that’s something you can consider when it comes
to Officer Perry’s ability to see what’s going on on this path at night.

“He’s an expert with guns, and yet when he first sees it thinks it’s a
fake gun. And he’s a trained observer, we heard that from the
prosecutor, that he’s a police officer who in that moment is in
investigative mode. And when he sees this gun on the side of the trail,
he thinks it’s fake, and it’s only sometime later when he realizes that
it’s, in fact, a real gun.

“So if the trained observer is making mistakes on this path at this time
of night and the trained observer has not been victimized, isn’t it also
reasonable that [the victim] can make some mistakes as well. . . .

“And we also know there’s a third suspect on the trail, someone right in
front of Officer Perry that he can’t identify, okay. He saw the person,
and now his memory has failed him. And that happens to all of us, and
it doesn’t mean you did anything wrong. But that’s the lens and the
reality by which this jury has to look at the evidence in this case and
make the determination as to whether the government has proven that
enhancement.

“The prosecutor brought up the K-9 dog, so I’ll make a few brief
comments about that.

“The dog—we don’t know who the dog tracks of if the dog is tracking
anyone from the trail of the robbery to the Shell gas station. We do
know that once the dog is provided with the wallet, that he tracks to

20
the jacket that the prosecutor has said belonged to my client Mr. Davis,
and in that jacket there is the gold cell phone.

“Now, [the victim] made it clear that whoever had the gun wasn’t the
person taking the items; that the person who had the gun was standing
behind him holding the gun up while the other two went through his
pockets.

“So if Mr. Davis was the person with the gun who was not taking the
items, how did he end up with the cell phone? How did the wallet that
was taken from [the victim] provide the dog with a track to my client’s
jacket?

“The only explanation would be that it’s my client who is taking the
items and not the one holding the gun.

“Okay. There’s also DNA. This gun was preserved for firearm testing,
and there’s been no explanation as to what happened with that.

“Now, because the government has such a high burden, this is it for me,
you’re not going to hear from me again, the prosecutor gets their chance
at rebuttal. And there’s a few things I want to say about rebuttal
generally.

“I don’t anticipate this is going to happen here, but I’ve had the
experience where new arguments I’ve never heard before are raised on
rebuttal. And obviously that’s called sandbagging. That’s not right
because I can’t respond. I’m very confident that will not happen here,
but as an advocate I got to cover all my bases.

“So if it does, I’m going to rely on this jury to simply ask yourselves,
what is the reasonable response to that. If [defense counsel] had the
opportunity to respond to that argument he’s never heard before, what
would that response be.

“And I’m sure that the prosecutor is going to address the DNA in his
rebuttal, because he has to, why we haven’t heard a thing about that.
No matter what he says, I want you to keep in mind this reality.

“The burden of proof lies on one side. That is the government. And in
this case you have giant void when it comes to the DNA on that gun,

21
the DNA that can link—the potential to link the gun to whoever was
holding it that night, and this jury has nothing.

“I’m also going to make a few comments about this prior incident, this
prior robbery that my client committed.

“Now, outside the presence of the jury, Judge Brady took judicial
notice. My client’s birthday is [redacted].

“So, when that prior incident occurred, my client was 13 years old and
two months. And the prosecutor made clear, something we do agree on,
that it can only be used—that prior incident can only be used for two
things: One is intent. But really I would argue that shouldn’t be
considered here, because somebody pulls a gun on someone and takes
their stuff, they’re intending to rob them, okay. There’s no question.

“Two is this MO, that the nature of that prior robbery was so distinct
and unique that that’s, in and of itself, something that can be used to
show that my client was the robber here.

“But again, that doesn’t have any actual application. My client was 13
years old. You know, the idea that because he made a mistake when he
was 13, that the similarities involved there have any application here,
it’s a stretch. This jury should not consider it for any purpose when it
comes to any issue, and especially the issue of whether the use
enhancement has been proven.

“Now I’m going to wrap up with some of these legal concepts that we’ve
already hit, so I’m going to move quick because I know you’ve already
heard about them.

“But this is a different graphic I don’t think [McCullough’s counsel]
showed you when it comes to circumstantial evidence. Specifically I
want to talk about the application of circumstantial evidence to the
personal use enhancement.

“So if this jury looks at all the evidence, the evolution of [the victim’s]
testimony, the lack of forensic evidence, the lighting on the trail, and
thinks that it is both reasonable that Mr. Davis could have had the gun
in his hand, and also reasonable that Mr. Davis did not have the gun, it
was one of the two other people, in that situation on the personal use

22
enhancement the law requires a not guilty or, in this case, a not true
finding for that enhancement. And it is only when the idea that it was
not Mr. Davis with that gun is an unreasonable idea, that the law
compels a guilty or true finding as to the personal use enhancement.

“This is the same idea as the language that’s going to come directly out
of the instruction. If one of the conclusions you can draw from
circumstantial evidence, whether it comes to a particular piece of
circumstantial evidence or a case that’s based entirely on
circumstantial evidence like this one, and one of those conclusions
points to innocence and that’s reasonable, boom, not guilty.

“Okay. So that’s the whole instruction you’re going to get, but I want
you to focus on just this one little part right now.

“Let’s talk about this. Proof beyond a reasonable doubt leaves you with
an abiding conviction. Those two words are critical. Abiding is long
lasting. Conviction is a deeply held belief.

“So in other words, when it comes to that enhancement, does it leave
you with a deeply held long-lasting belief that the prosecutor has
proven it was Mr. Davis with that gun. . . . [¶] . . . [¶]

“This abiding conviction has to be something, a belief that stays with
you for days, weeks, months, and years. And in light of what the
testimony and evidence you have here, that’s simply not possible when
it comes to the issue of the personal use enhancement. [¶] . . . [¶]

“. . . [P]roof beyond a reasonable doubt. That’s the standard that
applies to the charge and both the enhancements. That applies to both
of these individuals.

“Here’s that gray area that [McCullough’s counsel] talked about. Now,
ultimately all of this kind of points to one question when it comes to
Mr. Davis and the argument I’ve addressed here. Can you rule out
reasonable doubt? That’s his job. He has to eliminate reasonable
doubt.

“In this case, is it reasonable that someone else was holding that gun.
Based on all the changes you’ve heard in the testimony of [the victim],
and all the problems with the lighting and the lack of forensic evidence,

23
 is it just reasonable that it wasn’t Mr. Davis? If it is, that finding and
the enhancement is not true.

“Now, when it comes to this enhancement of the firearm, it talks about
how your job as citizens standing judgment of your government. You
know, you’re near the end, but you’re at the most critical part as well.

“Mr. Davis is charged with this crime and this enhancement that he did
not commit. He’s on the precipice of a profound injustice, and there’s
no 12 people on this Earth that can save him from the fall but the 12 of
you. [¶] . . . [¶] The personal enhancement has not been proven. I
thank you for your service.”

During rebuttal, the prosecutor stated, “You also notice that [Davis’s
counsel] practically conceded the robbery on Mr. Davis. He didn’t talk about
it at all. He’s given up.”
After the jury exited to deliberate, McCullough’s counsel asked the
court “to put something on the record.” She stated, “So there was something
with regard to [the prosecutor’s] rebuttal and closing argument that I did
want to note, which is that [the prosecutor] made the assertion that Mr.
Davis . . . had conceded the robbery. [¶] . . . [¶] And so I’m concerned that
[the prosecutor] argued in front of the jury that that concession was made,
even though I think that under the law the requirements are clearly very
different in order to concede a charged offense. So I did just want to note that
issue for the record.”
The court responded, “I think we may have a different situation here,”
but asked for Davis’s counsel response. Counsel replied, “I don’t think I have
anything to say.” The court then allowed McCullough’s counsel to research
the issue and bring up any concerns.
The next day, the court stated, “So what I received is a request from
defense counsel for Mr. McCullough to file and cite two cases in support of

24
the issue that we talked about yesterday, the objection that was made with
regard to closing arguments.” The People took the position that
McCullough’s counsel was asserting prosecutorial misconduct, and that the
issue was therefore waived because she failed to object to his statement at
the time he made them in his rebuttal. Or, alternatively, that defense
counsel lacked standing to object on behalf of Davis.
McCullough’s counsel explained she was actually asserting structural
error. She stated, “I understand that [Davis’s counsel] did not say explicitly ‘I
am conceding the robbery on behalf of my client.’ But I think a fair reading of
the record is that that is what was said and, in fact, [the prosecutor] then got
up and argued [Davis’s counsel] has conceded the charge of robbery, has said
that that charge is true for his client. And there was no objection from
[Davis’s counsel] as to that point. . . . [¶] My concern is that on this record
there has been an implicit concession as to that charge, especially given [the
prosecutor’s] arguments and the lack of response, and I think that that
creates a potential for structural error that affects my client. Because, as the
Court heard in closing argument, [the prosecutor] argued that because there
was this concession from [Davis’s counsel], that that now has an effect on how
the jury should see my client and whether or not he should be found guilty of
these charges. [¶] So the point that I want to make very clear for this record
is that I do believe my client has been prejudiced by what I believe may be an
error that occurred during this trial, and I just want to note that for the
record.”
The court decided to address the merits, regardless of any issues of
waiver or standing. After once again hearing from McCullough’s counsel and
the prosecution—Davis’s counsel again declined to make any comments—the
court stated, “I think there’s a substantial question mark whether or not in

25
this particular factual scenario, whether or not Mr. McCullough can complain
about the strategic argument decisions that were made by Mr. Davis’ counsel.
[¶] I’ve read the cases, and the one thing that distinguishes all of them,
frankly, from what occurred in this case is there was absolutely no concession
during Mr. Davis’ counsel’s argument. [¶] You can imply lots of things, but
counsel make strategic decisions about strengths and weaknesses of their
case, and argues appropriately. And it was clear from the closing argument
to me that [Davis’s counsel] was focusing on the firearm issue and not
mentioning or focusing on the robbery itself. [¶] I don’t think that’s
necessarily and I don’t think legally you can assume that that is a
concession.” Continuing the court stated, “I think competent defense counsel
makes choices about how they argue their case to focus the jury on what they
think is most advantageous to their client, and in this case it appears as
though [Davis’s counsel] focused on the firearm because this is the
enhancement that carries the biggest impact for his client. . . .” Finally, the
court noted that what the prosecutor argued in rebuttal was not evidence—
and that indeed, the jury is instructed “regularly, the arguments of counsel
are not evidence”—and even so, the prosecutor’s comments did not “make it a
concession either.”
On appeal, Davis, citing McCoy v. Louisiana (2018) 584 U.S. __ [138
S.Ct. 1500] (McCoy), contends his “Sixth Amendment right to maintain his
innocence . . . cannot be overridden by counsel’s tactical decision” of
concession. (Capitalization & boldface omitted.)
In McCoy, defense counsel had concluded “the evidence against McCoy
was overwhelming and that, absent a concession at the guilt stage that
McCoy was the killer, a death sentence would be impossible to avoid.”
(McCoy, supra, 138 S.Ct. at p. 1506.) Counsel relayed his strategy to the

26
defendant, who objected to any admission of guilt and “vociferously insisted”
in his innocence. (Id. at p. 1505.) Nevertheless, over the defendant’s
objection, counsel conceded guilt. (Ibid.) In his opening statement, counsel
told the jury “there was ‘no way reasonably possible’ that they could hear the
prosecution’s evidence and reach ‘any other conclusion that Robert McCoy
was the cause of these individuals’ death.’ ” (Id. at p. 1506.) He continued,
“the evidence is ‘unambiguous,’ ‘my client committed three murders.’ ”
Despite defendant’s testimony maintaining his innocence, counsel also—in
his closing argument—“reiterated that McCoy was the killer.” (Id. at
p. 1507.)
The United States Supreme Court granted certiorari to determine
“whether it is unconstitutional to allow defense counsel to concede guilt over
the defendant’s intransigent and unambiguous objection.” (McCoy, supra,
138 S.Ct. at p. 1507.) The court held, “When a client expressly asserts the
objective of ‘his defen[s]e’ is to maintain innocence of the charged criminal
acts, his lawyer must abide by that objective and may not override it by
conceding guilt.” (Id. at p. 1509.) The court concluded that defense counsel’s
failure to abide by that objective was structural error and a new trial was
required. (Id. at p. 1511.)
McCoy differs markedly from the instant case.
To begin with, as the trial court observed, defense counsel did not
expressly concede guilt on the substantive offense. Rather, counsel made the
tactical choice to focus on the enhancement, which carried a substantially
higher sentence than that of the substantive offense. Moreover, Davis’s
closing argument followed that by McCullough, and McCullough’s attorney
focused on the substantive offense, as well as on the armed enhancement
(which the court later struck for purposes of sentencing).

27
 Defendant claims, however, that “the gist” of his attorney’s argument
was that he “was one of the robbers, but not the one with the gun.” He points
in particular to that portion of the argument where his attorney stated,
“There’s certain things that no one is questioning. There’s no question that
[the victim] was robbed with a gun, there’s no question that there were three
individuals that robbed him with this gun, but his ability to determine who
each person was, who the respective players are is absolutely questionable
because you’ve heard it yourselves.”
However, this was not a concession by counsel that either his client, or
McCullough, were the perpetrators. In fact, Davis acknowledges his attorney
subsequently “argued the robbery as an assumption,” but maintains counsel
had “already conceded that it did happen.” However, the record does not bear
that out. Indeed, his attorney ended his closing argument by stating, “Mr.
Davis is charged with this crime and this enhancement that he did not
commit.” (Italics added.)
Davis’s reliance on the prosecutor’s statement on rebuttal—that “You
also notice that [Davis’s counsel] practically conceded the robbery on Mr.
Davis”—is similarly unavailing. The jury was expressly instructed that
nothing counsel said in their closing arguments was evidence. “We presume
the jurors understood and followed the instructions.” (People v. Johnson
(2015) 61 Cal.4th 734, 770.)
Unlike in McCoy, there also were no “vociferous” or “insistent”
objections by defendant to his counsel’s closing argument. Defendant
contends the record “supports the inference that [he] intended to invoke his
Sixth Amendment right to maintain innocence” because he pled not guilty
and because he “elected trial by jury, thereby invoking his due process right
to have every element of the offense proven by the prosecution beyond a

28
reasonable doubt.” But every defendant who goes to trial pleads not guilty
and declines to waive a jury—these initial defense actions say nothing about
the strategy that is ultimately adopted at trial. (See McCoy, supra, 138 S.Ct.
at p. 1509 [“If a client declines to participate in his defense, then an attorney
may permissibly guide the defense pursuant to the strategy she believes to be
in the defendant’s best interest.”].)
In sum, there is no merit to Davis’s claim that his counsel’s strategy at
trial—to focus on the enhancement—was contrary to Davis’s personal
objective and therefore a violation of his Sixth Amendment rights.
Prior Armed Robbery Conviction
Pursuant to the parties’ stipulation, the following was read to the jury:
“Defendant Jarmon Davis was charged with and admitted to committing a
felony violation of Penal Code section 211, second-degree robbery . . . , on
September the 24th, 2013.”
On appeal, defendant contends the “fact of [his] prior adjudication was
inadmissible; only the underlying conduct was admissible,” and this
erroneous admission violated his state and federal due process rights to a fair
trial.
Having stipulated to the admission of his prior adjudication, Davis has
waived any claim of error. (People v. Gallego (1990) 52 Cal.3d 115, 195
[defendant waived claim of prejudicial error by counsel’s stipulation to an
instruction on “defendant’s prior criminal record, including an adjudication
for lewd conduct when he was 13, and an adjudication for armed robbery
when he was 16”].)

29
McCullough’s Claims
Parole Revocation Fine
At sentencing, based on “an implied finding of [McCullough’s] inability
to pay,” the trial court declined to impose a restitution fine pursuant to
section 1202.4, subdivision (b).9 However, over counsel’s objection, the court
went on to impose and stay an $800 parole revocation fine pursuant to
section 1202.45, subdivision (a).10
On appeal, McCullough contends, and the Attorney General concedes,
the trial court erred in imposing the $800 parole revocation fine. The
concession is well taken. As the Attorney General acknowledges, the trial
court cannot impose a parole revocation fine under section 1202.45,
subdivision (a), that exceeds the restitution fine imposed under section
1202.4, subdivision (b), which, in this case, was zero. We therefore shall
remand the case for the trial court to strike the parole revocation fine.11
DISPOSITION
The matter is remanded back to the trial court to strike the parole
revocation restitution fine as to McCullough. In all other respects, the
judgements are affirmed.

9 Section 1202.4, subdivision (b) provides, “In every case where a
person is convicted of a crime, the court shall impose a separate and
additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record.”
10 Section 1202.45, subdivision (a) provides, “In every case where a
person is convicted of a crime and his or her sentence includes a period of
parole, the court shall, at the time of imposing the restitution fine pursuant
to subdivision (b) of Section 1202.4, assess an additional parole revocation
restitution fine in the same amount as that imposed pursuant to subdivision
(b) of Section 1202.4.
11 Given that we have rejected all of McCullough’s other claims of
error, we need not, and do not, address his final claim of cumulative error.

30
 _________________________
Banke, J.

We concur:

_________________________
Humes, P.J.

_________________________
East, J.

A158089, People v. Davis, A157271, People v. MCCULLOUGH

31