# People v. Sánchez

> California Supreme Court · June 23, 2016 · 63 Cal. 4th 411

URL: https://www.frixlaw.com/law-library/cases/9824314

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. EDGARDO SÁNCHEZ, Defendant and Appellant.
- **Court:** California Supreme Court
- **Decided:** June 23, 2016
- **Citations:** 63 Cal. 4th 411; 375 P.3d 812
- **Precedential status:** Published
- **Opinion:** Concurrence by Liu
- **Judges:** Chin, Liu, Cantil-Sakauye, Werdegar, Corrigan, Cuéllar, Kruger
- **Cited by:** 281 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

LIU J.,
Concurring.—I write separately to highlight two issues in this case that are ripe for reconsideration by this court. The first concerns the relevance of comparative juror analysis in determining whether a defendant has established a prima facie case of racial discrimination in jury selection under Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler). The second concerns 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.
I.
Today’s opinion holds that the trial court did not err when it found no prima facie case of racial discrimination in the prosecutor’s use of peremptory strikes against several Hispanic jurors. (Maj. opn., ante, at pp. 433^-40.) *489 In reaching this conclusion, the court posits various nondiscriminatory reasons for why the prosecutor would have wanted to strike those jurors. (Id. at pp. 436-437, 439.) I agree that those reasons are apparent and clearly established in the record. However, the court goes on to say: “Defendant asks us to engage in comparative juror analysis, but such analysis is inappropriate in a first stage case such as this, where we do not evaluate the prosecution’s stated reasons for the challenges.” (Id. at p. 439.)
I have previously explained why our rule barring comparative juror analysis at the first stage of the Batson inquiry violates Batson's directive to consider “all relevant circumstances” in determining whether the opponent of a strike has established a prima facie case of discrimination. ( Batson, supra, 476 U.S. at p. 96; accord, Johnson v. California (2005) 545 U.S. 162, 168-169 [ 162 L.Ed.2d 129 , 125 S.Ct. 2410 ].) “If a court hypothesizes race-neutral reasons the prosecution might have given for striking a particular juror, isn’t it relevant to inquire whether those reasons applied equally to other jurors?” (People v. Harris (2013) 57 Cal.4th 804, 875 [ 161 Cal.Rptr.3d 364 , 306 P.3d 1195 ] (conc. opn. of Liu, J.) (Harris).) “As the high court has explained: ‘If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.’ (Miller-El [v. Dretke (2005) 545 U.S. 231 ,] 241 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ].) By the same logic, if a court’s hypothesized reason for a prosecutor’s strike of a black panelist ‘applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered’ at Batson's first step.” (Id. at p. 874 (cone. opn. of Liu, J.)
Today’s opinion cites People v. Taylor (2010) 48 Cal.4th 574, 616-617 [ 108 Cal.Rptr.3d 87 , 229 P.3d 12 ] (Taylor) for the contrary rule. That case quoted People v. Bonilla (2007) 41 Cal.4th 313, 350 [ 60 Cal.Rptr.3d 209 , 160 P.3d 84 ] (Bonilla), which in turn cited People v. Bell (2007) 40 Cal.4th 582, 601 [ 54 Cal.Rptr.3d 453 , 151 P.3d 292 ] (Bell).
In Bell , “[t]his court, like the trial court, [was] able to determine that defendant made no prima facie case without hypothesizing permissible reasons that might have motivated the prosecutor’s challenges.” ( Bell, supra, 40 Cal.4th at p. 600.) The defendant argued that the high court’s then-recent decision in Miller-El mandated comparative juror analysis at Batson's first step. Rejecting this argument, we said: “In the circumstances of this first-stage Wheeler-Batson case, comparative juror analysis would make little sense. In determining whether defendant has made a prima facie case, the trial court did not ask the prosecutor to give reasons for his challenges, the prosecutor did not volunteer any, and the court did not hypothesize any. Nor, *490 obviously, did the trial court compare the challenged and accepted jurors to determine the plausibility of any asserted or hypothesized reasons. Where, as here, no reasons for the prosecutor’s challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison. Comparative juror analysis would be formless and unbounded.” (Bell, at pp. 600-601.) We added: “Miller-El does not mandate comparative juror analysis in a first-stage Wheeler-Batson case when neither the trial court nor the reviewing courts have been presented with the prosecutor’s reasons or have hypothesized any possible reasons.” (Id. at p. 601.) Bell thus stands for the proposition that comparative juror analysis does not make sense at Batson’s first step when neither the trial court nor a reviewing court has hypothesized any reasons for the contested strike. In that circumstance, “there is no fit subject for comparison,” and a court has no duty to compare jurors on the basis of “unspecified criteria.” (Bell, at p. 601.)
Four months later, this court in Bonilla extended the rule against comparative juror analysis at Batson’s first step to circumstances where we did hypothesize reasons for the contested strikes. (See Bonilla, supra, 41 Cal.4th at pp. 343, 346-349 [positing reasons to explain multiple strikes].) The entirety of our reasoning was that “this is a ‘first-stage’ Wheeler/Batson case, in that the trial court denied Bonilla’s motions after concluding he had failed to make out a prima facie case, not a ‘third-stage’ case, in which a trial court concludes a prima facie case has been made, solicits an explanation of the peremptory challenges from the prosecutor, and only then determines whether the defendant has carried his burden of demonstrating group bias. We have concluded that Miller-El v. Dretke[, supra,] 545 U.S. 231 .. . does not mandate comparative juror analysis in these circumstances (People v. Bell, supra, 40 Cal.4th at p. 601), and thus we are not compelled to conduct a comparative analysis here. Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales, and we thus decline to engage in a comparative analysis here.” ( Bonilla, supra, 41 Cal.4th at p. 350.)
Bonilla’s reliance on Bell was misplaced. Bell held that comparative juror analysis is not required when a reviewing court does not hypothesize reasons for a contested strike in finding no prima facie case of discrimination. ( Bell, supra, 40 Cal.4th at pp. 600-601.) Bell’s reasoning does not apply when a reviewing court does hypothesize such reasons, for in that circumstance, there is a “fit subject for comparison,” and the criteria for comparing jurors are not “unspecified.” (Id. at p. 601.) If a court posits a nondiscriminatory reason for a contested strike, whether that reason applies to similarly situated jurors *491 whom the prosecutor did not strike is plainly a “relevant circumstance []” bearing on its plausibility as an explanation for the contested strike. ( Batson, supra, 476 U.S. at p. 96.)
Since Bonilla , this court has repeatedly held that it is unnecessary to engage in comparative juror analysis to test the plausibility of a hypothesized reason at Batson’s first step. (See People v. Streeter (2012) 54 Cal.4th 205 , 225-226 & fn. 5 [ 142 Cal.Rptr.3d 481 , 278 P.3d 754 ] (Streeter); People v. Clark (2011) 52 Cal.4th 856 , 907-908 & fn. 13 [ 131 Cal.Rptr.3d 225 , 261 P.3d 243 ] (Clark); Taylor, supra, 48 Cal.4th at pp. 616-617; People v. Hawthorne (2009) 46 Cal.4th 67, 80, fn. 3 [ 92 Cal.Rptr.3d 330 , 205 P.3d 245 ]; People v. Howard (2008) 42 Cal.4th 1000, 1019-1020 [ 71 Cal.Rptr.3d 264 , 175 P.3d 13 ].) Our cases have simply cited Bonilla or precedent applying Bonilla without further reasoning.
Recently, in Harris , one justice changed her view on this issue: “When, as here, a reviewing court discerns from the record that a peremptory challenge is supported by a race-neutral reason not stated by the prosecutor, should the court also consider whether that reason ‘applied equally to other jurors’ not challenged by the prosecutor? (Conc. opn. of Liu, J., post, [57 Cal.4th] at p. 875.) As Justice Liu explains, consideration of such information flows logically from the United States Supreme Court’s statement that, in determining whether a party has made a prima facie case that the opposing party has challenged a prospective juror because of race, a court should consider ‘all relevant circumstances.’ ( Batson, supra, 476 U.S. at pp. 96-97.) But in that situation, this court has noted in past decisions that it would not engage in comparative juror analysis. [Citations to Streeter, Clark, and Bonilla.] I joined those decisions. I am now persuaded, however, that circumstances pertaining to other jurors can be relevant in this context. What comes to mind in this change of view are the oft-quoted words of United States Supreme Court Justice Felix Frankfurter: ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’ (Henslee v. Union Planters Bank (1949) 335 U.S. 595, 600 [ 93 L.Ed. 259 , 69 S.Ct. 290 ] (dis. opn. of Frankfurter, J.).)” ( Harris, supra, 57 Cal.4th at pp. 862-863 (conc. opn. of Kennard, J.).)
Notably, this court in Harris , while observing that “we have declined to conduct a comparative juror analysis” at Batson’s first step, acknowledged contrary precedent and did not reaffirm our rule. ( Harris, supra, 57 Cal.4th at p. 836, citing U.S. v. Collins (9th Cir. 2009) 551 F.3d 914 .) Instead of finding it unnecessary to conduct a comparative juror analysis, Harris held that “even if we were to do so, a comparative juror analysis does not aid defendant.” (Harris, at p. 836.) The court proceeded to conduct a comparative juror analysis (id. at pp. 836-838)—as did Justice Kennard (id. at p. 863 (conc. *492 opn. of Kennard, J.)) and I (id. at pp. 876-879 (conc. opn. of Liu, J.))—and the court concluded that there were valid reasons in the record for distinguishing between the contested jurors and other prospective jurors. The reasoning of all seven justices in Harris belies any concern that comparative juror analysis in these circumstances would be “formless and unbounded” ( Bell, supra, 40 Cal.4th at p. 601) or analytically of “little or no use” ( Bonilla, supra, 41 Cal.4th at p. 350) or otherwise “inappropriate” (maj. opn., ante, at p. 439). (Cf. Harris , at p. 876 (conc. opn. of Liu, J.) [noting that the court in Harris engaged in comparative juror analysis at step one of Batson “for the first time in our case law,” and questioning whether “the court in deed, if not in word, has signaled a retreat from its established rule”].)
Our decisions, including this one, have never cited any other jurisdiction that has rejected the relevance of comparative juror analysis in testing a hypothesized reason for a contested strike. Meanwhile, a mountain of contrary authority has piled up before and after Bonilla . (See, e.g., Sanchez v. Roden (1st Cir. 2014) 753 F.3d 279, 302 [“ ‘[A] prima facie case of discrimination can be made out by offering a wide variety of evidence.’ [Citation.] . . . [¶] . . . [O]f great importance here, we take into account ‘whether similarly situated jurors from outside the allegedly targeted group were permitted to serve’ on the jury in ruling on a Batson challenge.”]; Aspen v. Bissonnette (1st Cir. 2007) 480 F.3d 571, 577 [“In considering [whether a defendant has raised an inference of discrimination], courts examine both numeric and non-numeric forms of evidence. . . . Relevant non-numeric evidence includes . . . apparent non-discriminatory reasons for striking potential jurors based on their voir dire answers, [citation], and whether similarly situated jurors from outside the allegedly targeted group were permitted to serve . . . .”]; Bennett v. Gaetz (7th Cir. 2010) 592 F.3d 786, 792 [“[U]nder the facts of this case, the jurors’ experience with crime seems an implausible reason for the peremptories. Although the two African-Americans struck by the prosecution testified that they had been crime victims, so too did at least four non-African-Americans who ultimately served as jurors. Based on this side-by-side comparison between excluded and non-excluded jurors, the prosecution would have been hard-pressed to credibly assert the jurors’ experience with crime as a race-neutral reason had the trial court proceeded to Batson’s second stage.”]; U.S. v. Young-Bey (8th Cir. 1990) 893 F.2d 178, 180 [evidence supporting an inference of discrimination under Batson includes “a pattern of discriminatory strikes, the prosecutor’s statements during voir dire suggesting discriminatory purpose, [and] the fact that white persons were chosen for the petit jury who seemed to have the same qualities as stricken black venirepersons”]; U.S. v. Johnson (8th Cir. 1989) 873 F.2d 1137, 1140 [“In this case, the voir dire record does raise the inference of discrimination as the Government struck black veniremen at a disproportionate rate and struck blacks who did not respond during voir dire *493 but did not strike whites who similarly did not respond.”]; U.S. v. Hughes (8th Cir. 1989) 880 F.2d 101, 103 [“There were six blacks on the original jury panel. . . . During voir dire one of these three jurors ... did not answer affirmatively to any of the district court’s questions calculated to determine bias or prejudice. Yet, as we read the voir dire, others did not answer and some of those who did not answer appear to have served on the petit jury. [¶] A second of the blacks challenged . . . had served as a juror in city court and had been a victim of a burglary eight years earlier. . . . About half of the venire similarly had been crime victims and several had prior jury service.”]; Crittenden v. Ayers (9th Cir. 2010) 624 F.3d 943, 956 [“[C]omparative juror analysis may be employed at step one to determine whether the petitioner has established a prima facie case of discrimination.”]; U.S. v. Collins, supra, 551 F.3d at p. 922 [“[B]ased on our review of the record, we conclude that an inference of discrimination did exist in this case. Comparison of Juror No. 9’s characteristics with the characteristics of other similarly situated panel members who were allowed to serve reveals little distinction that could account for the prosecutor’s strike of Juror No. 9.”]; U.S. v. Esparsen (10th Cir. 1991) 930 F.2d 1461, 1467 [“By itself, the number of challenges used against members of a particular race is ‘not sufficient to establish or negate a prima facie case.’ [Citations.] The number takes on meaning only in the context of other information such as the racial composition of the venire, the race of others struck by the prosecution, or the voir dire answers of those who were struck compared to the answers of those who were not struck.” (fns. omitted)]; U.S. v. Ochoa-Vasquez (11th Cir. 2005) 428 F.3d 1015 , 1044 [“In order to determine whether a Batson objector like Ochoa has established a prima facie case of discrimination, courts must consider all relevant circumstances. [Citations.] . . . While statistical evidence may support an inference of discrimination, it can do so ‘only’ when placed ‘in context.’ [Citations.] For example, ‘the number of persons shuck takes on meaning only when coupled with other information such as the racial composition of the venire, the race of others struck, or the voir dire answers of those who were struck compared to the answers of those who were not struck.’ ”]; U.S. v. Allison (11th Cir. 1990) 908 F.2d 1531, 1538 [“In making out a prima facie case, . . . ‘[t]he defendant must identify facts and circumstances that support the inference of discrimination, such as a pattern of discriminatory strikes, the prosecutor’s statements during voir dire suggesting discriminatory purpose, or the fact that white persons were chosen for the petit jury who seemed to have the same qualities as stricken black venirepersons.’ ”]; State v. Rhone (2010) 168 Wn.2d 645 [ 229 P.3d 752, 757 ] [“circumstances evincing an inference of discrimination” include “similarities between those individuals who remain on the jury and those who have been struck”]; People v. Davis (2009) 233 Ill.2d 244 [ 330 Ill.Dec. 744 , 909 N.E.2d 766, 773 ] [comparative juror analysis is “one factor in the totality of the circumstances that the court should take into consideration in considering the existence of a prima facie *494 case”]; People v. Bolling (1992) 79 N.Y.2d 317 [ 582 N.Y.S.2d 950 , 591 N.E.2d 1136 , 1141] [“The defendant may also raise an inference of discrimination by making a record comparing Caucasians accepted with similarly situated African-Americans challenged . . . .”]; Ex parte Branch (Ala. 1987) 526 So.2d 609, 622-623 [“the types of evidence that can be used to raise the inference of discrimination” include “[disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., ... a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged”].)
In sum, the rule we announced in Bonilla is out of step with prevailing authority; Bonilla’s reliance on Bell was misplaced; neither Bonilla nor any subsequent case has explained why comparative juror analysis is irrelevant or inappropriate to test the plausibility of a hypothesized reason for a contested strike; and the application of comparative juror analysis by the majority and concurring justices in Harris demonstrates its relevance to the first-stage Batson inquiry. These considerations present ample justification for reconsidering our precedent. (See Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 296-297 [ 250 Cal.Rptr. 116 , 758 P.2d 58 ].)
In this case, the court’s first-stage analysis includes hypothesized reasons for the prosecutor’s strikes of Prospective Jurors P.G., E.A., and T.M. (Maj. opn., ante, at pp. 436-437, 439.) Comparative juror analysis is warranted but, on this record, does not aid the Batson claims. Although defendant Edgardo Sánchez says four other jurors were similar to PG. in their opposition to the death penalty, the record shows that none of the four expressed as strong a dislike of the death penalty as PG. did. As to E.A., Sánchez does not identify any comparison jurors, and in any event, no other prospective juror possessed E.A.’s combination of reluctance to be involved in making a death penalty decision, history of sexual abuse as a child, and recent experience of a brain operation for a seizure disorder. And as to T.M., the record shows that there were 10 other jurors who answered “yes” on the questionnaire to the question whether the juror had “moral, ethical or religious beliefs that would make it difficult for you to vote for” the death penalty. Among those 10, six were excused for cause, two were struck by the prosecution, and the other two never reached the jury box. Comparative juror analysis thus casts no doubt on the plausibility of the reasons posited by the court for the strikes of P.G., E.A., and T.M., and I join the court in affirming the trial court’s first-stage Batson rulings.
II.
The trial court instructed the jury with CALJIC No. 2.92, which says that “[i]n determining the weight to be given eyewitness identification testimony, *495 you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including but not limited, to any of the following: [¶] . . . [¶] The extent to which the witness is either certain or uncertain of the identification . . . Sánchez argues that the trial court erred in instructing the jury that it could consider the certainty factor. I agree that Sánchez forfeited this claim (maj. opn., ante, at p. 461) and that any error was harmless because “the eyewitness identifications were far from the only evidence connecting defendant to the crimes” (id. at p. 462). But I do not join the court in approving the instruction as given in this case.
Today’s opinion notes that during the more than two decades since we approved the certainty factor in People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 [ 14 Cal.Rptr.2d 702 , 842 P.2d 1 ], at least two state high courts have disapproved instructing on this factor in light of scientific studies showing that witness certainty is not necessarily correlated with accuracy of eyewitness identifications. (See State v. Mitchell (2012) 294 Kan. 469 [ 275 P.3d 905, 912-913 ] (Mitchell); Commonwealth v. Santoli (1997) 424 Mass. 837 [ 680 N.E.2d 1116, 1121 ].) The court goes on to say that this case involves “uncertain as well as certain identifications” and that “[a]ny reexamination of our previous holdings in light of developments in other jurisdictions should await a case involving only certain identifications.” (Maj. opn., ante, at p. 462.)
But even if it were proper to instruct the jury to consider a witness’s expression of uncertainty regarding an identification, that would not mean it is proper to instruct the jury to consider a witness’s expression of certainty. They are not two sides of the same coin. If it is erroneous to instruct a jury to consider a witness’s certainty in evaluating the accuracy of an identification, then it is no less erroneous to instruct a jury to consider both certainty and uncertainty in a case involving certain and uncertain identifications. Because we can dispose of Sánchez’s claim on grounds of forfeiture and harmless error, we need not resolve the merits here. But I see no reason to “await a case involving only certain identifications” (maj. opn., ante, at p. 462) before taking up this important issue.
The court says “[t]he 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.” (Maj. opn., ante, at p. 462.) But the instruction naturally “prompts the jury to conclude that an eyewitness identification is more reliable when the witness expresses greater certainty.” ( Mitchell, supra, 275 P.3d at p. 913.) As the New Jersey Supreme Court explained in a recent decision reevaluating the legal framework for admitting eyewitness identification evidence, “[w]e presume that jurors are able to detect liars from truth *496 tellers. But as scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and ‘[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness.’ [Citation.] Instead, some mistaken eyewitnesses, at least by the time they testify at trial, exude supreme confidence in their identifications.” (State v. Henderson (2011) 208 N.J. 208 [ 27 A.3d 872, 889 ] (Henderson).)
The Oregon Supreme Court, in another recent decision reexamining the admissibility of eyewitness identification evidence, summarized the research on witness certainty and accuracy as follows: ‘“Despite widespread reliance by judges and juries on the certainty of an eyewitness’s identification, studies show that, under most circumstances, witness confidence or certainty is not a good indicator of identification accuracy. Regarding prospective certainty— the witness’s confidence prior to the identification procedure in his or her ability to make an identification—a number of meta-analytic studies have found no correlation between certainty and identification accuracy. In contrast, retrospective certainty—witness confidence in the accuracy of their identification after it has occurred—may have a weak correlation with accuracy. See Gary L. Wells & Elizabeth A. Olsen, Eyewitness Testimony, 54 Ann. Rev. Psychol. 277, 283 (2003) (describing studies). The effect, however, appears only within the small percentage of extremely confident witnesses who rated their certainty at 90 percent or higher, and even those individuals were wrong 10 percent of the time. Id.
‘“Research also shows that retrospective self-reports on eyewitness certainty are highly susceptible to suggestive procedures and confirming feedback, a factor that further limits the utility of the certainty variable. Wells, ‘Good, You Identified the Suspect’[: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience (1998)] 83 J. Applied Psychol. 360. Witnesses who receive confirming feedback—i.e., are told or otherwise made aware that they made a correct identification—report higher levels of retrospective confidence than witnesses who receive either no feedback or discontinuing feedback. Id. It appears, moreover, that confirming feedback may inflate confidence to a greater degree in mistaken identifications than in correct identifications. See, e.g., Amy L. Bradfield et al., The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. Applied Psychol. 112, 115 (2002) (reporting that inaccurate witness self-reports increased from an average of 49 percent certain to an average of 67 percent certain after receiving confirming feedback, while the same feedback increased accurate witnesses’ certainty only from an average of 80 percent to 85 percent).
“Finally, we note that witness certainty, although a poor indicator of identification accuracy in most cases, nevertheless has substantial potential to *497 influence jurors. Studies show that eyewitness confidence is the single most influential factor in juror determinations regarding the accuracy of an eyewitness identification. See, e.g., Gary L. Wells et al., Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification, 64 J. Applied Psychol. 440, 446 (1979); Michael R. Leippe et al., Cueing Confidence in Eyewitness Identifications: Influence of Biased Lineup Instructions and Pre-Identification Memory Feedback Under Varying Lineup Conditions, 33 Law & Hum. Behav. 194 , 194 (2009) (summarizing prior research). Jurors, however, tend to be unaware of the generally weak relationship between confidence and accuracy, and are also unaware of how susceptible witness certainty is to manipulation by suggestive procedures or confirming feedback. See, e.g., Tanja R. Benton et al., Eyewitness Memory is Still Not Common Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20 Applied Cognitive Psychol. 115, 120 (2006) (finding that only 38 percent of jurors surveyed correctly understood the relationship between accuracy and confidence and only 50 percent of jurors recognized that witnesses’ confidence can be manipulated). As a result, jurors consistently tend to overvalue the effect of the certainty variable in determining the accuracy of eyewitness identifications.” (State v. Lawson (2012) 352 Or. 724 [ 291 P.3d 673, 704-705 ]; see State v. Ledbetter (2005) 275 Conn. 534 [ 881 A.2d 290, 311-313 ] [reviewing research showing that ‘“a weak correlation, at most, exists between the level of certainty demonstrated by the witness at the identification and the accuracy of that identification” and that ‘“this factor seems to have a significant impact on the [jury’s] reliability analysis”].)
In a recent report canvassing the scientific research on eyewitness identification, a committee of the National Academy of Sciences wrote: ‘“Evidence indicates that self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy. The relationship between the witness’ stated confidence and accuracy of identifications may be greater at the moment of initial identification than at the time of trial. However, the strength of the confidence-accuracy relationship varies, as it depends on complex interactions among such factors as environmental conditions, persons involved, individual emotional states, and more. Expressions of confidence in the courtroom often deviate substantially from a witness’ initial confidence judgment, and confidence levels reported long after the initial identification can be inflated by factors other than the memory of the suspect.” (Nat. Research Council, Identifying the Culprit: Assessing Eyewitness Identification (2014) p. 108, fns. omitted (Identifying the Culprit).)
CALJIC No. 2.92 instructs the jury that the ‘“extent to which the witness is either certain or uncertain of the identification” is a factor “bear[ing] upon the *498 accuracy of the witness identification of the defendant” that ‘“you should consider.” This instruction does not distinguish between witness certainty at the time of identification and witness certainty at the time of trial. Nor does it caution that many factors can affect the relationship between certainty and accuracy at the time of identification and at the time of trial. Nor does it acknowledge that the relationship between uncertainty and inaccuracy may differ from the relationship between certainty and accuracy. To be sure, the reliability of eyewitness identification is a matter that the parties can contest at trial, using expert testimony if they wish. (See People v. McDonald (1984) 37 Cal.3d 351, 369 [ 208 Cal.Rptr. 236 , 690 P.2d 709 ]; Perry v. New Hampshire (2012) 565 U.S. 228, 244-248 [ 181 L.Ed.2d 694 , 132 S.Ct. 716, 728-730 ].) But the parties’ evidence and arguments do not obviate the need for a proper jury instruction. 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.
The sooner we reexamine this issue, the better—for law enforcement, for criminal defendants, and for society at large. ‘“Accurate eyewitness identifications may aid in the apprehension and prosecution of the perpetrators of crimes. However, inaccurate identifications may lead to the prosecution of innocent persons while the guilty party goes free.” (Identifying the Culprit, supra, at p. 9, fn. omitted; see State v. Delgado (2006) 188 N.J. 48 [ 902 A.2d 888, 895 ] [‘“Eyewitness identification can be the most powerful evidence presented at trial, but it can be the most dangerous too.”].) Indeed, mistaken eyewitness identifications have played a role in a substantial number of wrongful convictions and unsolved crimes. (Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011) p. 48 [finding that 190 of the first 250 inmates exonerated by DNA testing since 1989 were misidentified by an eyewitness].) This issue deserves our careful attention, for “[a]t stake is the very integrity of the criminal justice system and the courts’ ability to conduct fair trials.” ( Henderson, supra, 27 A.3d at p. 879.)
III.
Finally, today’s opinion holds that the trial court did not err when it admitted the stun gun evidence from the incident at Rod’s Coffee Shop as probative of Sanchez’s identity as the person who used the stun gun during the Casa Gamino robbery. (Maj. opn., ante, at p. 452.) But it is not clear to me that use of a stun gun is “ ‘so unusual and distinctive as to be like a signature’ ” relevant to proving identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 403 [ 27 Cal.Rptr.2d 646 , 867 P.2d 757 ].) Instead of deciding whether the *499 trial court erred, I would find that any error was harmless beyond a reasonable doubt in light of the trial testimony of Armando Lopez and Javier Lopez, both of whom identified Sánchez as the stun gun user.
Apart from the issues discussed above, I join the opinion of the court.
Appellant’s petition for a rehearing was denied August 17, 2016.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9824314. Public record. Not legal advice.