People v. Petty
Opinion
E072035
10-21-2021
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JOEL PETTY, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys
General, for Plaintiff and Respondent.
APPEAL from the Superior Court of Riverside County. No. BAF1800674 Randall Donald
White, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.). Modified and affirmed with directions.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys
General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
Defendant and appellant, William Joel Petty, appeals from the judgment entered following a jury
conviction for robbing a Sizzler restaurant (Pen. Code, § 211). The court also found true
allegations he had two prior strike convictions (§§ 667, subds. (c) and (e)(1), 1170.12, subd. (e)
(1)), two prior serious felony convictions (§ 667, subd. (a)), and six prison priors (§ 667.5, subd.
(b)). The trial court sentenced defendant to 25 years to life, plus 14 years in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court violated his due process rights and state law by instructing the
jury to consider an eyewitness's certainty when identifying defendant as the perpetrator.
Defendant also argues that, in accordance with Senate Bill No. 136 (2019-2020 Reg. Sess.), his
four one-year prison priors must be stricken. In addition, defendant argues the trial court erred in
ordering him to pay fines, fees, and assessments, because he demonstrated he did not have the
ability to pay them.
As to defendant's challenge to CALCRIM No. 315's inclusion of certainty as a factor to be
considered in evaluating the accuracy of an identification, we initially rejected that challenge as
having previously been rejected by our Supreme Court. After our initial opinion was filed, the
California Supreme Court granted review, with further action in the matter deferred pending
consideration and disposition of a related issue in People v. Lemcke (2021) 11 Cal.5th 644
(Lemcke). Thereafter the California Supreme Court held in Lemcke, supra, 11 Cal.5th 644 that
the identification certainty factor in CALCRIM No. 315 did not violate the defendant's state or
federal due process rights. This case was then transferred back to this court with directions to
vacate our initial opinion and reconsider the cause in light of Lemcke. Having done so, we
conclude defendant was not prejudiced by the instruction and his state and federal constitutional
due process rights were not violated. We also reject defendant's additional contention raised in
his post-remand, supplemental brief addressing Lemcke, that the identification certainty clause in
CALCRIM No. 315 violates state law because it is misleading.
As to defendant's other contentions decided in our previously vacated decision in this matter, our
decision is unchanged. We agree with the parties that Senate Bill No. 136 requires this court to
strike defendant's four one-year prison priors. As to the court-ordered fines, fees, and
assessments, we conclude defendant failed to meet his burden of demonstrating inability to pay
the $10,000 restitution fine, $30 criminal conviction assessment fee, or $40 court operations
assessment fee. We further conclude the probation officer's recommendation report (probation
report) was sufficient to support the trial court imposing the pre-sentence probation report fee,
not to exceed $1,095, and booking fee of $514.53. The sentence is therefore modified to strike
defendant's four section 667.5, subdivision (b) prior prison term enhancements. The judgment is
otherwise affirmed.
II.
FACTS
On May 17, 2018, at 8:40 a.m., Sysco delivery driver, S.M., parked his truck alongside a Hemet
Sizzler restaurant. As S.M. was unloading goods, using the backdoor entry into the Sizzler
kitchen, he was approached by a man later identified as defendant. While S.M. was on the phone
talking to his cousin and brother, defendant told S.M. he was looking for the Sizzler manager and
the office. S.M. said, "'She's over there somewhere.'" "'I don't know where she's at. You can go
look for her.'" S.M. then noticed defendant appeared to have a gun. Defendant said, "'Walk in the
office, '" and "'Either you either walk in there, or you're going to regret it.'"
As S.M. walked toward the office, defendant held what S.M. thought was a gun on S.M.'s back.
While walking to the office, S.M. was still on his phone with his cousin and brother. S.M. told
them he was being robbed at the Hemet Sizzler, and to call the police. S.M. remained on the
phone and continued to tell them what was happening during the robbery. On the way to the
office with S.M., defendant grabbed a Sizzler employee and took her with them into the office.
When in the office, S.M. noticed the weapon defendant was using was not a gun. It was a
construction tool, which appeared to be a nail gun. Defendant then located the Sizzler manager,
M.M., in the dining area and told her to come to the office.
M.M. testified that, not knowing what was going on, M.M. walked over to the office. When she
approached defendant, he pushed something toward her stomach, grabbed a salad bar attendant,
"threw her" towards M.M., and told M.M. to give him all her money. At that point, M.M.
realized they were being robbed. M.M. and the other employee walked with defendant into the
office. While they were in the office with S.M., defendant told M.M. to get the money out of the
safe. Defendant pointed the nail gun at M.M. as she opened the safe and removed the money.
M.M. put $3,300 in defendant's bag.
While defendant was distracted by M.M. putting money in the bag defendant was holding, S.M.
ran out of the office and called 911. Throughout the robbery, S.M. had been relaying over his
phone what was happening during the robbery to his cousin and brother. When defendant noticed
S.M. had left the office, defendant fled with the bag of money.
S.M. testified that defendant was wearing sunglasses, dark clothing, and a beanie, had a short,
dark mustache and beard, was African-American, and appeared in his 40's or 50's. M.M. testified
defendant had a mustache and beard, was wearing black pants, a gray sweater, a beanie, and
sunglasses, and had a black Nike bag.
A. Surveillance Videos
Police reviewed surveillance videos from the Sizzler and Circle K, located next to the Sizzler.
The videos were played for the jury during the trial. The Circle K video shows defendant pulling
into the Circle K parking lot, in a black GMC pickup truck with red writing on yellow paper
license plates. Defendant is seen entering the Circle K and then returning to the GMC truck. The
Circle K video provided a clear view of defendant wearing a blue t-shirt, tan jacket, and
sunglasses. The video shows the GMC truck leave the parking lot, drive towards the Sizzler,
circle the parking lot a couple of times, park in the parking lot, drive closer to the Sizzler, and
park 40 to 50 feet from the Sizzler's entrance. The Circle K video shows defendant then exit the
GMC truck and walk towards the Sizzler service entry carrying a bag. Two minutes later he is
seen returning at a quick pace to the GMC truck, reentering the truck, and driving away.
The Sizzler video shows defendant inside the Sizzler during the robbery. Defendant is wearing
different clothing than in the Circle K surveillance video. Nevertheless, he appears to be the
same person in both videos. His physical features, moustache, and sunglasses appear to be the
same in both videos. The Sizzler video shows defendant with a mustache and goatee, wearing
black pants, a gray sweater or hoody, a beanie, black shoes with white bottoms, and sunglasses.
The robbery lasted about two and a half minutes, from 9:00 a.m. to 9:02 a.m. The police were
called at 9:04 a.m.
B. Vagabond Inn Evidence
Detective Young testified that, when he was assigned to investigate the Sizzler robbery, he
reviewed Officer Lynton's report, the surveillance videos, and still frame photographs from the
Sizzler and Circle K videos. The day after the robbery, Young noticed defendant's truck parked
in the Hemet Vagabond Inn parking lot. Young ran the vin number on the truck and it showed
that defendant was the owner of the truck. Two officers assisting Young showed the hotel
manager a photograph from the Circle K video. The hotel manager provided the officers with
defendant's hotel room number and a key card to enter the hotel room. Young and the two
officers knocked on defendant's hotel room door. No one answered but the officers heard a male
voice inside. The officers entered the room using the room keycard. Young testified that upon
entering, Young immediately recognized defendant as the same person in the Sizzler and from
Circle K surveillance videos. He had a mustache and a short beard.
After arresting defendant and obtaining a search warrant, officers found in defendant's hotel
room clothing that matched defendant's clothing in the Circle K and Sizzler surveillance videos.
The clothing included the same blue t-shirt and tan jacket defendant wore at the Circle K, a black
beanie he wore in the Sizzler, and black shoes with white rubber soles defendant wore at the
Circle K and Sizzler. The officers also found a folder that had defendant's name on it. Inside the
folder was a Wells Fargo Bank deposit bag containing about $1,000 in cash. Defendant's wallet
contained an additional $278 in cash and two separate transaction receipts from Money Mart for
wiring $300 to another account. Young testified that officers also found in the hotel room a blue
Fila duffle bag, which was different from the black Nike duffle bag defendant used during the
robbery.
C. Additional Evidence Presented at Trial
Young testified he conducted separate photograph lineups for S.M. and M.M., during which both
S.M. and M.M. identified defendant as the Sizzler robber. Young further testified defendant's
sunglasses were found in defendant's GMC truck. Young believed the sunglasses looked like the
ones defendant wore in the Circle K and Sizzler surveillance videos. Young did not find the nail
gun or Nike bag. Young testified he concluded based on all of the evidence he had seen,
including the GMC truck, clothing, the description and appearance of the Sizzler robber, the
money found in the deposit bag in defendant's hotel room, and the surveillance videos, that
defendant was the Sizzler robber.
Young acknowledged during his testimony that someone had reported to dispatch that a red truck
had been involved in the Sizzler robbery but he did not know who the caller was. Defendant's
sole defense witness, H.G., testified that, at the time of the robbery, she was employed at the
Sizzler as a preparer. On the day of the robbery, she arrived for work at the Sizzler at 9:10 a.m.
Her shift normally starts at 9:30 a.m. The police interviewed her concerning the robbery on the
day of the robbery. She told the police that at 9:15 a.m., she saw a man running towards a big,
dark red truck. When the police showed her a photograph of a truck, she told them it was not the
same truck she saw. H.G. acknowledged that when she saw the truck, she was focused on her
phone and got confused about what she saw. H.G. said she did not witness the robbery. She saw
someone leave the Sizzler, get into a truck, and drive away. Defendant's investigator interviewed
her. She told him she saw either a red or dark colored truck. She was told the cameras showed a
black truck. This confused H.G. H.G. acknowledged she was confused about the color of the
truck.
III.
CALCRIM NO. 315
Defendant contends that the trial court denied his due process rights by giving CALCRIM No.
315, which instructed the jury that when evaluating the accuracy of a witness's identification of
the defendant, the jury consider, among other factors: "How certain was the witness when he or
she made an identification?"{2CT 367}
After this court issued its decision in this case, holding that there was no instructional error under
People v. Wright (1988) 45 Cal.3d 1126, 1141-1143, People v. Johnson (1992) 3 Cal.4th 1183,
1231-2132, and People v. Sánchez (2016) 63 Cal.4th 411, 461-463 (Sánchez), the California
Supreme Court granted defendant's petition for review and deferred deciding the identification
certainty issue until after deciding a similar issue in Lemcke, supra, 11 Cal.5th 644. After
Lemcke was decided, the California Supreme Court remanded this case back to this court to
reconsider and decide the identification certainty issue based on Lemcke. In a supplemental brief,
defendant acknowledges that in Lemcke the court held that the identification certainty factor in
CALCRIM No. 315 did not violate the defendant's due process rights. However, defendant
argues that the instruction violates state law because the instruction is misleading. Defendant
argues that giving the instruction therefore constitutes prejudicial error requiring reversal.
The People did not file a supplemental brief on the issue.
The People contend defendant forfeited any challenge to the instruction by failing to object in the
trial court. Regardless of whether defendant forfeited the issue, we reject defendant's challenge to
the instruction on the merits. In doing so, we review defendant's objection to the instruction de
novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
A. Identification Facts
S.M. and M.M. identified defendant as the perpetrator of the robbery in photograph lineups and
in court. M.M. testified that a little before 9:00 a.m., on the day of the robbery, she saw an
employee talking with someone at the salad bar. M.M. identified in court the person as
defendant. M.M. testified it was about two and a half minutes from the time she first saw
defendant until he fled. The officers arrived about three minutes later. M.M. showed the officers
the Sizzler surveillance video. During the trial, M.M. identified defendant in the video. M.M.
further testified that Officer Lynton interviewed her. An hour and a half later he returned,
showed her and other Sizzler employees a still photograph from the Circle K surveillance video,
and told her it was a photograph of the robber. Four days later, on May 21, 2018, she participated
in a photograph lineup conducted by Young, during which she selected defendant's photograph
as the perpetrator.
S.M. testified Young conducted a photograph lineup on May 23, 2018. During the photograph
lineup, S.M. selected defendant's photograph from six photographs. S.M. testified that he
recognized defendant as the Sizzler robber "right away," and that S.M. was certain at the time of
trial that defendant was the robber. At the time of the photograph lineup, S.M. asked if the robber
had already been arrested. S.M. did not recall what he was told. S.M. also asked if he had
selected the right person as the robber and the officer said he could not tell S.M. S.M. testified
that, before he and defendant went into the Sizzler office, S.M. got a good look at defendant.
S.M. said that he and defendant were a foot away from each other, and they were face to face
"more than once," for "10, 15 seconds." S.M. added that before he and defendant went into the
Sizzler office, S.M. had "a lot of eye contact."
Young testified that on May 23, 2018, he conducted a photograph lineup with S.M. S.M. asked
Young if the defendant had already been arrested, and Young told him they had someone in
custody. Young testified that during the photograph lineup with M.M., she narrowed down her
selection to two photographs, one of which included defendant.
B. Analysis
Defendant argues the CALCRIM No. 315 witness identification certainty factor is contrary to
empirical studies that show witness certainty has no correlation with identification accuracy and
is therefore misleading and violates state law. The court in Lemcke agreed that, "Contrary to
widespread lay belief, there is now near unanimity in the empirical research that 'eyewitness
confidence is generally an unreliable indicator of accuracy.' [Citations.]" (Lemcke, supra, 11
Cal.5th at p. 647.) Lemcke further stated that, "[a]s currently worded, CALCRIM No. 315 does
nothing to disabuse jurors of that common misconception, but rather tends to reinforce it by
implying that an identification is more likely to be reliable when the witness has expressed
certainty." (Id. at p. 647.) Nevertheless, the court in Lemcke concluded the instruction did not
violate federal or state due process rights to a fair trial, and therefore the court did not reverse the
decision. (Id. at pp. 646-647.)
Although the court in Lemcke recognized the significance that witness certainty plays in the
factfinding process, the Lemcke court did not state or suggest that the instruction violated any
state law or the state constitution. The Lemcke court, however, requested the Judicial Council
and its Advisory Committee on Criminal Jury Instructions to evaluate whether or how the
instruction might be modified and directed trial courts to omit the certainty factor from
CALCRIM No. 315 unless the defendant requests otherwise. (Lemcke, supra, 11 Cal.5th at p.
647)
Defendant argues the instruction violates state law because it is misleading, but the defendant
does not identify any specific law or cite any supporting case law or statutory authority. Lemcke
does not discuss whether the instruction violates state law, other than stating it does not violate
state constitutional due process rights. Lemcke states that there is "nothing in CALCRIM No.
315's instruction on witness certainty that operates to 'lower the prosecution's burden of proof.'
As Sánchez, supra, 63 Cal.4th 411, explained with respect to CALJIC No. 2.92's similarly
worded instruction, the instruction does not direct the jury that 'certainty equals accuracy.'
(Sánchez, at p. 462.) Nor does the instruction state that the jury must presume an identification is
accurate if the eyewitness has expressed certainty. (Cf. Francis v. Franklin (1985) 471 U.S. 307,
316 [instruction that 'directs the jury to presume an essential element of the offense' violates due
process].) 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.
Indeed, even [the defendant] acknowledges that, on its face, the instruction is 'superficially
neutral.'" (Lemcke, supra, 11 Cal.5th at p. 655.)
The Lemcke court added that, "[a]lthough the wording of the instruction might cause some jurors
to infer that certainty is generally correlative of accuracy [citation], [the defendant] was
permitted to present expert witness testimony to combat that inference." (Lemcke, supra, 11
Cal.5th at pp. 657-658.) The court in Lemcke does not indicate the instruction is unlawful.
We conclude that under Lemcke, the identification certainty factor in CALCRIM No. 315 did not
violate defendant's state or federal due process rights. (Lemcke, supra, 11 Cal.5th at pp. 646-
647.) Defendant also has not established that the identification certainty factor violated any state
law.
IV.
SENATE BILL NO. 136
Defendant contends, and the People agree, that recently enacted Senate Bill No. 136 applies
retroactively to this case. Senate Bill No. 136 amended section 667.5, subdivision (b), effective
January 1, 2020. (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136 narrowed eligibility for a one-
year prior prison term enhancement to those who have served a prior prison sentence for a
sexually violent offense. Defendant was sentenced on January 11, 2019. The trial court imposed
four prior prison term enhancements, which were not for sexually violent offenses. Defendant is
therefore entitled to the ameliorative benefit of the statute because Senate Bill No. 136 applies
retroactively to the instant case.
Whether a particular statute is intended to apply retroactively is a matter of statutory
interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting "'the role
of a court is to determine the intent of the Legislature'"].) Generally speaking, new criminal
legislation is presumed to apply prospectively unless the statute expressly declares a contrary
intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an
inference arises under In re Estrada (1965) 63 Cal.2d 740, "'that, in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to
extend as broadly as possible, distinguishing only as necessary between sentences that are final
and sentences that are not.'" (Lara, supra, at p. 308.) "A new law mitigates or lessens punishment
when it either mandates reduction of a sentence or grants a trial court the discretion to do so."
(People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
There is no indication in Senate Bill No. 136 or its associated legislative history that the
Legislature intended Senate Bill No. 136 and amended section 667.5, subdivision (b) not to
apply retroactively to all defendants whose sentences were not yet final when the bill went into
effect on January 1, 2020. Under such circumstances, we find that Estrada's inference of
retroactive application applies. (People v. Cruz (2020) 46 Cal.App.5th 715, 738-739; People v.
Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill No. 136 applies retroactively to cases
not yet final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682.) Therefore,
defendant is entitled to have his four one-year prior prison term enhancements stricken.
