P. v. Lemcke

Filed 6/21/18 P. v. Lemcke 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
v.
DESIRAE LEE LEMCKE and
CHARLES HENRY RUDD,
Defendants and Appellants.
G054241
(Super. Ct. No. 14CF3596)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
Sylvia W. Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant Desirae Lee Lemcke.
Jeanine G. Strong, under appointment by the Court of Appeal, for
Defendant and Appellant Charles Henry Rudd.

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Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendants Desirae Lee Lemcke and Charles Rudd of
robbery (Pen. Code, §§ 211, 212.5, subd. (c); count 1)1
and aggravated assault (§ 245,
subd. (a)(1); count 3). It further found Rudd guilty of battery with serious bodily injury
(§ 243, subd. (d); count 4), and that he personally inflicted great bodily injury (§ 12022.7,
subd. (a)) in the course of the robbery and the aggravated assault. The court found Rudd
served two prior terms in state prison (§ 667.5, subd. (b)) and Lemcke served one prior
term in state prison. The court sentenced Rudd to six years in prison, consisting of a
three-year midterm on the robbery and a consecutive three-year term for inflicting great
bodily injury. Lemcke was sentenced to three years on the robbery conviction. As to
both defendants, the court stayed execution of sentence on the remaining counts pursuant
to section 654.
On appeal, Lemcke contends her conviction for aggravated assault must be
reversed due to instructional error that permitted her to be convicted on an invalid theory.
Rudd contends an instruction erroneously let the jury consider a witness’s level of
certainty of his identification. We affirm the judgments.
1
All statutory references are to the Penal Code unless otherwise stated.

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FACTS
The Robbery and Assault
Monica Campusano was at the Royal Roman Motel in Santa Ana,
California, on July 13, 2014, at 7:30 p.m. to visit a girlfriend. Campusano was dressed in
her work uniform and had her purse, containing $500 or $550, over her right shoulder.
Campusano walked by room 216 on her way to visit her friend. A young woman, later
identified as Lemcke, was standing just outside of room 216. Lemcke was with a man
Campusano later identified as Rudd, who was standing in the doorway of room 216.
Lemcke asked if Campusano had a cell phone she could use. Campusano said she did
and as she was about to hand it to Lemcke, Rudd hit Campusano in the face and pulled
her into the room.
Rudd punched Campusano about four times in the head. When she was on
the floor, Rudd kicked her in her stomach and head. Campusano told Rudd to take her
bag and not to do anything to her. Rudd called her a “fucking faggot.”2
She lost
consciousness inside the room. Before she passed out, Campusano got a good look at
Rudd’s face. He had a tattoo on the right side of his neck. The last thing she
remembered before regaining consciousness was being on the floor inside room 216,
beaten up and bleeding.
When Campusano recovered consciousness, she went to the motel office.
She couldn’t remember whether someone helped her walk to the office or whether she
went on her own. She was dizzy and saw the defendants leaving in a taxi. Campusano
called 911 and reported that she had just been robbed by “a black guy with a lady.” She
said they took her phone and her purse, “with [her] money and everything.” Campusano
said the man was the one who hit her.
2
Campusano is a male transgender person.

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Officer Ricardo Velasquez responded to the motel and met with
Campusano. She was crying, bleeding from her mouth, and her lower jaw was swollen.
She described the male assailant as being a big African-American male, approximately
six foot three inches to six foot five inches tall, 260 to 300 pounds, balding, with a
goatee. She described the female as Caucasian, heavyset—over 200 pounds, perhaps five
foot six inches tall, with a tattoo around the neck area.
Campusano underwent surgery. Wires inserted into her jaw remained for
five or six weeks. During that time she could only consume liquids. As a result of the
incident, her jaw was not the same, it looked different, and it made a noise when she
talked or chewed. It continued to hurt at the time of the trial.
After arranging an ambulance for Campusano, Velasquez spoke with the
owner of the motel. Records showed Lemcke had been registered in room 216 on that
date. The officer ran a record check on Lemcke and found she matched the description of
the female given by Campusano. He also found a court record involving Lemcke and
Rudd, wherein Rudd was listed as six foot three inches tall and 250 pounds.
Velasquez created a photographic lineup containing a photograph of Rudd
in the number five position. He took the lineup to the hospital where Campusano was in
a bed and read her an admonishment about the photographic lineup. Campusano selected
Rudd’s photograph as the assailant.
In October 2014, Campusano was shown another photographic lineup.
This one contained a photograph of Lemcke in position number two. Campusano
selected Lemcke’s photograph as the woman involved. Days later, she was shown two
photographs of neck tattoos on African-American males. The photographs did not show
the subjects’ faces. Campusano identified Rudd’s tattoo.
Also in October 2014, Campusano informed a detective she recently was at
a Walmart store in Garden Grove, California, where she saw Lemcke with an African-

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American male. She followed them for some period of time and concluded the male was
not the one who robbed her.
The defense presented the testimony of an expert who testified to
psychological factors that may affect the validity of an eyewitness identification. (See
People v. McDonald (1984) 37 Cal.3d 351, 361-369, overruled on a different point in
People v. Mendoza (2000) 23 Cal.4th 896 [admissibility of expert testimony regarding
psychological factors affecting eyewitness identification].)
DISCUSSION
I
Lemcke’s Appeal
Lemcke contends instructional error requires reversal of her aggravated
assault conviction. She argues the court’s instruction to the jury on aiding and abetting
with respect to the robbery allowed the jury to convict her of the aggravated assault under
circumstances where the assault was not the natural and probable consequence of the
robbery.
Lemcke was prosecuted for robbery on the theory that she aided and
abetted Rudd when she asked Campusano to borrow her cellphone, giving Rudd the
opportunity to pull Campusano into Lemcke’s motel room and rob her. Under the
prosecution’s theory of the case, Lemcke shared Rudd’s intent to steal. (People v.
Beeman (1984) 35 Cal.3d 547, 560.)
Lemcke was charged with aggravated assault based on the natural and
probable consequences theory of aiding and abetting. “Once the necessary mental state is
established, the aider and abettor is guilty not only of the intended, or target, offense, but
also of any other crime the direct perpetrator actually commits that is a natural and
probable consequence of the target offense.” (People v. Mendoza (1998) 18 Cal.4th
1114, 1123.) Therefore, if Lemcke aided and abetted Rudd in committing a robbery, she

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would be guilty for any natural and probable offense Rudd committed during robbery.
(See People v. Fagalilo (1981) 123 Cal.App.3d 524, 532 [jury could reasonably find
aggravated assault was natural and probable consequence of robbery].)
The court instructed the jury with CALCRIM No. 1603: “To be guilty of
robbery as an aider and abettor, the defendant must have formed the intent to aid and abet
the commission of the robbery before or while a perpetrator carried away the property to
a place of temporary safety. [¶] A perpetrator has reached a place of temporary safety
with the property if he or she has successfully escaped from the scene, is no longer being
pursued, and has unchallenged possession of the property.” 3
(Italics added.) According
to Lemcke, the italicized portion of the instruction would permit the jury to convict her of
aggravated assault as a natural and probable consequence of the robbery, even if the jury
found the act that triggered aiding and abetting liability occurred after Rudd had already
committed the assault against Campusano. We review de novo whether the trial court’s
3
The court also instructed the jury pursuant to CALCRIM No. 402 as
follows: “The defendants are charged in count one with second degree robbery and in
count three with aggravated assault.”
“To find a defendant guilty based on the natural and probable consequences
doctrine, you must first decide whether a defendant is guilty of second degree robbery. If
you find the defendant is guilty of this crime, you must then decide whether he or she is
guilty of aggravated assault.”
“Under certain circumstances, a person who is guilty of one crime may also
be guilty of other crimes that were committed at the same time.”
“To prove that a defendant is guilty of aggravated assault, the People must
prove that: [¶] 1. The defendant is guilty of second degree robbery; [¶] 2. During the
commission of the second degree robbery a coparticipant in that second degree robbery
committed the crime of aggravated assault;” and “3. Under all the circumstances, a
reasonable person in the defendant’s position would have known that the commission of
aggravated assault was a natural and probable consequence of the commission of the
second degree robbery.”
“A coparticipant in a crime is the perpetrator or anyone who aided and
abetted the perpetrator. It does not include a victim or innocent bystander.”

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instructions were “‘complete and correctly state the law.’” (People v. Bell (2009) 179
Cal.App.4th 428, 435.)
CALCRIM No. 1603 is a correct statement of the law. (People v. Cooper
(1991) 53 Cal.3d 1158, 1161, 1165.) Lemcke did not object to the instruction. A trial
court cannot be expected to alter a correct and approved instruction absent a request from
counsel. (People v. Kelly (1992) 1 Cal.4th 495, 535.) “‘Failure to object to instructional
error forfeits the issue for appeal unless the error affects the defendant’s substantial
rights.’” (People v. Battle (2011) 198 Cal.App.4th 50, 64.)
“It is said that the failure to object to an instruction in the trial court waives
any claim of error unless the claimed error affected the substantial rights of the
defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the
defendant would have obtained a more favorable result in the absence of error.
[Citations.] Ascertaining whether claimed instructional error affected the substantial
rights of the defendant necessarily requires an examination of the merits of the claim—at
least to the extent of ascertaining whether the asserted error would result in prejudice if
error it was. Accordingly, it seems far better to state straightforwardly, as we now do,
that an appellate court may ascertain whether the defendant’s substantial rights will be
affected by the asserted instructional error and, if so, may consider the merits and reverse
the conviction if error indeed occurred, even though the defendant failed to object in the
trial court.” (People v. Anderson (1994) 26 Cal.App.4th 1241, 1249.)
As noted above, CALCRIM No. 1603 is a correct statement of the law. But
that does not mean it should be given in all robbery cases where the defendant is charged
as an aider and abettor. The bench notes to the instruction state it is not to be given when
the defendant is charged with felony-murder as an aider and abettor. (Judicial Council of
Cal. Crim. Jury Instns. (2018) Bench Notes to Cal. Crim. No. 1603.) This note appears to
be based on an issue raised in People v. Pulido (1997) 15 Cal.4th 713 (Pulido). There,
the issue was whether a defendant could be liable for a felony-murder committed before

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he aided and abetted the killer in the commission of a robbery. (Id. at p. 716.) The
Pulido court answered the question in the negative, because in such a case the “killer and
accomplice were not ‘jointly engaged at the time of such killing’ in a robbery [citation].”
(Ibid., italics added.) An accomplice’s liability for felony-murder is based on a homicide
“committed in furtherance of a ‘common purpose’ [citation] or ‘common design’
[citation] of robbery” and does not extend to “a killing that preceded any agreement or
intent to participate in the robbery, because the killer was not then acting in pursuit of any
such common design or purpose.” (Id. at p. 722.)
The Pulido court, however, held the failure to instruct the jury that an aider
and abettor cannot be convicted of a felony-murder committed by another if the
defendant only aided and abetted the robbery after the murder occurred did not require
reversal, because the issue was decided adversely to the defendant under other, proper
instructions. (Pulido, supra, 15 Cal.4th at p. 716.) The jury in Pulido had been
instructed it could not find the defendant guilty of the robbery-murder unless he was
engaged in the robbery “at the time of the killing.” In addition, the jury had also been
instructed to determine whether the murder occurred “‘while the defendant was engaged
or was an accomplice in’ robbery . . . .” (Pulido, supra, 15 Cal.4th at p. 727.)
The Pulido court noted the standard instructions are generally correct, but
when “substantial evidence would permit the jury to find the defendant began aiding and
abetting an enumerated felony only after the killing occurred, they may require
modification, or qualification with a special instruction. Unmodified, CALJIC No. 8.27
appears to tell the jury that an aider and abettor in an enumerated felony, without any
temporal or causal qualification, is liable for first degree murder in a killing committed
by anyone else engaged in the felony. In combination with the Cooper instruction
concerning the duration of a robbery [citation], CALJIC No. 8.27 could well suggest to a
jury that a person who aids and abets only in the asportation phase of robbery, after the
killing is complete, is nonetheless guilty of first degree murder under the felony-murder

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rule. As we have seen, that implication would be incorrect.” (Pulido, supra, 15 Cal.4th
at p. 728.)
The same is true of CALCRIM No. 1603. In the present case, a jury could
understand the unmodified instruction to permit Lemcke’s conviction for aggravated
assault (the nontarget crime), even if her act of aiding and abetting Rudd’s commission of
the robbery occurred after he assaulted Campusano. Lemcke was not, however,
prejudiced by the giving of these instructions. Here, the only act on Lemcke’s part that
was argued to give rise to aider and abettor liability for robbery, was asking Campusano
for her cellphone. That act occurred before the robbery. There was no argument urging
Lemke did some act after the aggravated assault that somehow aided and abetted Rudd in
the commission of the robbery he had already committed, but which would continue until
he reached a place of temporary safety. (See People v. Wilkins (2013) 56 Cal.4th 333,
345 [robbery continues until perpetrator reaches place of temporary safety].) Lemcke
argued she was not guilty of aiding and abetting the robbery because she did not know
Rudd intended to commit a robbery when she asked to borrow Campusano’s cellphone.
Under these circumstances, we conclude that even if the trial court erred in
instructing the jury that a robbery continues until the perpetrator reaches a place of
temporary safety, the error did not cause any of the jurors to find Lemcke guilty of
aggravated assault as a natural and probable consequence of a robbery Lemcke did not
aid and abet until after the robbery and aggravated assault had been committed. Thus,
instructing the jury pursuant to CALCRIM No. 1603, in conjunction with CALCRIM No.
402, did not prejudice Lemcke under federal or state standards. (Chapman v. California
(1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836.)

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II
Rudd’s Appeal
Rudd contends his state and federal due process rights were violated when
the court instructed the jury with CALCRIM No. 315. That instruction directs the jury to
consider an eyewitness’s level of certainty when evaluating an identification. On cross-
examination Campusano stated, “But I do remember his face well. It’s impossible for me
not to recognize his face.”4
The defense presented the testimony of an eyewitness expert
who testified about factors that may affect the accuracy of an identification.
As instructed, CALCRIM No. 315 provides:
“You have heard eyewitness testimony identifying the defendants. As with
any other witness, you must decide whether an eyewitness gave truthful and accurate
testimony.”
“In evaluating identification testimony, consider the following questions:
[¶] Did the witness know or have contact with the defendants 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 defendants? [¶] 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 defendants? [¶] 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 defendants of different races? [¶] Was
4
Campusano’s statement could have been objected to and stricken as it was
not in response to a question. (Evid. Code, § 766 [unresponsive answers “shall be
stricken on motion of any party”].)

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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?” (Italics
added.)
“The People have the burden of proving beyond a reasonable doubt that it
was the defendants who committed the crimes. If the People have not met this burden,
you must find the defendants not guilty.”
Discussing proposed instructions, the court asked Rudd’s attorney if he had
“any objections, insertions, or deletions” to the proposed jury instructions. Defense
counsel responded: “On CALCRIM [No.] 315, that portion of the factor talking about
how certain was the witness when he or she made the identification, I’m relying on
Justice Liu’s concurring opinion in [People v. Sánchez (2016) 63 Cal.4th 411], wherein
he discusses the rule of deleting that because there is absolutely no authority supporting
any type of correlation between witness competence and witness accuracy.” Thus
defense counsel preserved the issue for appeal.
We review de novo whether an instruction correctly states the law. (People
v. Posey (2004) 32 Cal.4th 193, 218.) We do not, however, write on a clean slate here, as
we are bound by holdings of our Supreme Court. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
“The vagaries of eyewitness identification are well-known; the annals of
criminal law are rife with instances of mistaken identification . . . .” (United States v.
Wade (1967) 388 U.S. 218, 228.) The United States Supreme Court also noted a “high
incidence of miscarriage of justice from mistaken identification.” (Ibid.) Certainly, if a
witness states he or she is not certain of the identification he or she made, the jury should
be able to consider that fact in determining the accuracy of the identification of the
defendant as the culprit. (See People v. Sánchez, supra, 63 Cal.4th at pp. 461-462
(Sánchez).) But that does not mean the jury should conclude an accurate identification

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has been made because the witness was certain about his or her identification, for as
studies have shown, the witness’s certainty does not make the identification any more
likely to be accurate. (Sánchez, at p. 495 (conc. opn. of Liu, J.).)
In People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 (Johnson), our
Supreme Court considered a challenge to CALJIC No. 2.92, the precursor to CALCRIM
No. 315. CALJIC No. 2.92 advised jurors that on the issue of eyewitness identification
they could consider “[t]he extent to which the witness was either certain or uncertain of
the identification.” (Johnson, supra, 3 Cal.4th at p. 1231, fn. 12.) The defendant in
Johnson contended the portion of CALJIC No. 2.92 permitting a jury to consider the
certainty of a witness’s identification was not supported by the evidence because, in that
case, an expert “testified without contradiction that a witness’s confidence in an
identification does not positively correlate with its accuracy.” (Johnson, supra, 3 Cal.4th
at p. 1231.) In the alternative, the defendant in Johnson argued the instruction was
improper because it, in effect, contradicted the expert’s testimony. (Ibid.) Our Supreme
Court found that as the jury had been instructed to consider the testimony of any expert,
“if the jury was persuaded by [the expert’s] testimony, the instructions allowed it to infer
that [a witness’s] positive identification was not necessarily an accurate one.” (Id. at p.
1232.)
Years later, in Sánchez, supra, 63 Cal.4th 411, our Supreme Court
considered the issue Rudd raises herein. In Sánchez, the jury was instructed pursuant to
CALJIC No. 2.92 to consider how certain a witness was in making an identification, just
as the jury had been instructed in Johnson. (Sánchez, supra, 63 Cal.4th at p. 461; see
Johnson, supra, 3 Cal.4th at p. 1231, fn. 12.) The court acknowledged “[s]tudies
concluding there is, at best, a weak correlation between witness certainty and accuracy
are nothing new.” (Sánchez, supra, 63 Cal.4th at p. 462.) The Supreme Court held,
however, the defendant forfeited the issue by not objecting in the trial court (id. at p.
461), the trial court did not err in giving the instruction, and the defendant suffered no

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prejudice from the giving of the instruction (id. at p. 462). The court observed it was not
clear whether defense counsel would have wanted the “certainty” portion deleted from
CALJIC No. 2.92 because there were a number of uncertain identifications, and the
“[d]efendant would surely want the jury to consider how uncertain an identification
was . . . .” (Sánchez, at p. 462.)
Justice Liu concurred in finding the issue had been forfeited and that any
error was harmless. Justice Liu did not, however, join in the majority’s approval of
CALJIC No. 2.92 and its directing the jury to consider the certainty of a witness’s
identification. (Sánchez, supra, 63 Cal.4th at p. 495 (conc. opn. of Liu, J.).) He wrote
separately on “California’s standard instruction on how juries should evaluate eyewitness
identification evidence, a topic on which scientific research has shed important light in
recent decades.” (Id. at p. 488 (conc. opn. of Liu, J.).)
Justice Liu noted research has shown certainty of an identification “‘is not a
good indicator of identification accuracy.’” (Sánchez, supra, 63 Cal.4th 496 (conc. opn.
of Liu, J.).) He concluded the propriety of that portion of the jury instruction directing
the jury to consider the certainty of the eyewitness should be reconsidered. “In light of
developments in scientific research and recent case law, there is a substantial question
whether it is proper for trial courts to instruct that witness certainty is a factor bearing on
the accuracy of an identification that juries should consider.” (Id. at p. 498 (conc. opn. of
Liu, J.).) Justice Liu concluded that the propriety of an eyewitness instruction requiring
the jury to consider the certainty of the witness’s identification “deserves our careful
attention” and should be reexamined soon. (Ibid.)
We are bound by our high court’s decisions holding that an instruction
concerning the certainty of an eyewitness’s identification is proper. In the majority
opinion in Sánchez, the court stated, “Any reexamination of our previous holdings in
light of developments in other jurisdictions should await a case involving only certain

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identifications.” (Sánchez, supra, 63 Cal.4th at p. 462.) This case may be such a case.
Defense counsel brought the “certainty” portion of CALCRIM No. 315 to the trial court’s
attention. Rudd’s connection to the charged offenses was not supported by any physical
evidence, there were no uncertain identifications, and the case against Rudd consisted
entirely of Capusano’s eyewitness testimony. However, because we are bound by the
decisions in Sánchez and Johnson, we reject Rudd’s contention that the trial court erred
in instructing the jury it should consider the certainty of eyewitness identifications.
DISPOSITION
The judgments are affirmed.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.

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