Filed 10/6/14 P. v. Arce CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL JOSEPH ARCE,

Defendant and Appellant.

 D063999

 (Super. Ct. Nos. SCS251545;

 SCS259123)

APPEAL from a judgment of the Superior Court of San Diego County, Alvin E. 

Green, Judge. Affirmed in part; reversed in part and remanded.

Donna L. Harris, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne 

McGinnis and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
2

Daniel Arce appeals a judgment following his jury conviction of robbery (Pen. 

Code, § 211),1 assault with a deadly weapon (§ 245, subd. (a)(1)), and hit and run driving 

(Veh. Code, § 20002, subd. (a)). On appeal, he contends the trial court erred by: (1) 

giving a special instruction regarding expert testimony on eyewitness identifications; and 

(2) awarding him 679 days of credit for his misdemeanor Vehicle Code section 20002, 

subdivision (a), conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On July 27, 2011, Arce and another man parked a silver Mustang for a couple of 

hours on the street near Robert Morales's house where neighbors had left items outside 

for others to take away. Arce and the other man got out of the Mustang and approached a 

generator and vacuum extractor, which were both running, near Morales's motor home. 

Arce picked up the extractor and the other man picked up the generator. Morales yelled 

at them to put the items down, explaining the generator and extractor were not free to be 

taken. The two men ignored Morales and ran to their car. Arce dropped the extractor on 

the way, but the other man placed Morales's generator in the car. Arce got in the driver's 

seat and the other man got in the passenger's seat. As Morales ran toward the car to stop 

them, Arce drove toward Morales at 15 to 25 miles per hour, hitting him and knocking 

him to the street.

Morales got on a motorcycle and pursued the fleeing Mustang, which sped along 

streets and onto the freeway. He saw Arce driving the car. During the chase, Arce and 

 

1 All statutory references are to the Penal Code unless otherwise specified.
3

his passenger threw items, including Morales's generator, out of the car's window.2 At 

one point, Morales saw the passenger pull out a small semi-automatic weapon and heard 

two gunshots. Later, Arce lost control of the Mustang and collided with another car. 

Morales called police and reported the license number of the Mustang. He also observed 

Arce when close to him. However, a few minutes later, Arce drove away again. Police 

found the car later and impounded it.

Morales did not identify anyone in the first photographic lineup he was shown by 

police, or in the live lineup. He positively identified Arce in a later photographic lineup 

and was certain he was the driver of the silver Mustang.

Arce's DNA was found on the driver's side of the Mustang. The car belonged to 

his nephew, who was staying with Arce at the time. That day the nephew found his car 

keys in an unusual place and Arce told him the car had been impounded. Morales did not 

identify Arce's nephew as depicting the other man involved in the incident.

An amended information charged Arce with robbery, assault with a deadly 

weapon, and hit and run driving. It alleged that in committing the robbery he used a 

firearm (§ 12022, subd. (a)(1)) and a deadly weapon (i.e., a motor vehicle) (§ 12022, 

subd. (b)(1)). It alleged that in committing the assault with a deadly weapon he used a 

deadly weapon (i.e., a motor vehicle) (§ 1192.7, subd. (c)(23)). It also alleged he had two 

 

2 Those discarded items were later recovered by police.
4

or more prior felony convictions (§ 1203, subd. (e)(4)) and had served two prior prison 

terms (§ 667.5, subd. (b)).

At trial, the prosecution presented evidence substantially as described above. In 

his defense, Arce presented the testimony of Robert Shomer, an expert on eyewitness 

identification. Shomer had not visited any of the incident locations or interviewed any of 

the eyewitnesses in this case. Shomer stated his expert testimony was "not to substitute 

some opinion of [his] for the jurors but simply provide some information, tools, so to 

speak, that they may choose to use or may choose not to use in their evaluation" of the 

eyewitness identification evidence. He stated he could not determine whether a particular 

eyewitness identification was correct, but could only talk generally about reasons why 

eyewitness identifications may or may not be accurate.

Shomer testified the chance of an eyewitness correctly identifying a stranger in 

difficult circumstances and under high stress was about 50-50. Lighting, distance, 

duration, adrenalin, stressful situations, and cross-racial identification are important 

factors in the accuracy of an eyewitness's identification. Also, over time eyewitnesses 

may become more confident in their identifications because they commit themselves to 

the identifications already made, but research shows accuracy is more likely to decline 

over time.

The jury found Arce guilty of all three charged offenses and found true all but one 

of the allegations related to counts 1 and 2. He admitted the allegation he had served two 

prior prison terms (§ 667.5, subd. (b)). The trial court sentenced Arce to a prison term of 
5

three years for count 1, with a consecutive one-year enhancement for the firearm use 

allegation and two consecutive one-year enhancements for the prior prison term 

allegations, and imposed and stayed a concurrent three-year term for count 2. Regarding 

count 3, the court denied probation and granted Arce 679 days of credit for time served. 

The court also sentenced him to an additional one-year term for an assault conviction in 

another case, to be served consecutively to the sentence in the instant case. Arce timely 

filed a notice of appeal.

DISCUSSION

I

Jury Instructions Generally

"[T]he trial court normally must, even in the absence of a request, instruct on 

general principles of law that are closely and openly connected to the facts and that are 

necessary for the jury's understanding of the case." (People v. Carter (2003) 30 Cal.4th 

1166, 1219.) A court may also have a duty to give instructions requested by the parties, 

but it may properly refuse a requested instruction "if it incorrectly states the law, is 

argumentative, duplicative, or potentially confusing [citation], or if it is not supported by 

substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.) Alternatively 

stated, "[i]n a criminal trial, the court must give an instruction requested by a party if the 

instruction correctly states the law and relates to a material question upon which there is 

evidence substantial enough to merit consideration." (People v. Barajas (2004) 120 

Cal.App.4th 787, 791.) If a court gives an instruction that is an incorrect statement of 
6

law, a defendant's failure to object or request clarifying or corrective language does not 

forfeit a challenge to that instruction on appeal. (People v. Hudson (2006) 38 Cal.4th 

1002, 1011-1012; see § 1259 ["The appellate court may . . . review any instruction given, 

. . . even though no objection was made thereto in the lower court, if the substantial rights 

of the defendant were affected thereby."]; People v. Smithey (1999) 20 Cal.4th 936, 976-

977, fn. 7.) "When we review challenges to a jury instruction as being incorrect or 

incomplete, we evaluate the instructions given as a whole, not in isolation." (People v. 

Rundle (2008) 43 Cal.4th 76, 149; see People v. Castillo (1997) 16 Cal.4th 1009, 1016.)

II

Special Instruction No. 1

Arce contends the trial court prejudicially erred by giving a special instruction 

requested by the prosecutor because that instruction incorrectly stated the law regarding 

expert testimony on eyewitness identifications.3

A

At trial, the prosecutor requested a special instruction regarding expert testimony 

on eyewitness testimony. The prosecutor apparently based that instruction on language 

contained in People v. McDonald (1984) 37 Cal.3d 351 (McDonald). Arce's counsel 

replied that she had not had an opportunity to review the case on which that requested 

 

3 To the extent Arce may be correct, he did not forfeit his challenge to the 

instruction by not objecting to it below. (§ 1259; People v. Hudson, supra, 38 Cal.4th at 

pp. 1011-1012; People v. Smithey, supra, 20 Cal.4th at pp. 976-977, fn. 7.)
7

instruction was based. The trial court stated it had read the case and intended to give the 

instruction unless Arce's counsel subsequently objected to it. However, his counsel did 

not later object to the instruction.

After instructing with CALCRIM Nos. 226 (on credibility of witnesses), 315 (on 

eyewitness identification testimony), and 332 (on expert witness testimony), the court 

instructed the jury with the prosecutor's requested special instruction No. 1, as follows:

"Expert testimony has been presented regarding factors which may 

affect an eyewitness identification. The law does not permit such 

experts to express an opinion regarding the presence or absence of 

such factors under the particular facts of this case. In addition, the 

law does not allow such experts to express an opinion as to the 

accuracy of the eyewitness identification in this case. [¶] Therefore, 

you are not to speculate as to whether the expert holds an opinion 

regarding such issues or what such opinion might be. You are to 

give the testimony of the expert the weight to which you find it to be 

entitled. You are the sole judges to what extent, if any, such 

testimony is to be applied to the witness's identification in this case." 

(Italics added.)

The jury found Arce guilty of all three charged offenses.

B

Arce asserts special instruction No. 1, given by the trial court, incorrectly stated 

the law and therefore violated his rights to present a defense, due process, and a fair trial. 

He argues the second sentence of that instruction is incorrect because the law allows 

expert witnesses to express opinions on the presence or absence of factors that may affect 

eyewitness identifications.

In McDonald, supra, 37 Cal.3d 351, the court considered whether the trial court 

had erred by excluding expert witness testimony proffered by the defendant on 
8

psychological factors that may affect the accuracy of eyewitness identification.4 

(McDonald, supra, 37 Cal.3d at p. 361.) In that case, the expert witness "made it clear 

that he did not propose to offer an opinion that any particular witness at this trial was or 

was not mistaken in his or her identification of defendant. But he did intend to point out 

various psychological factors that could have affected that identification in the present 

case." (Id. at p. 362.) McDonald concluded the trial court erred by excluding the expert 

testimony proffered by the defendant on psychological factors that may affect the 

accuracy of eyewitness identification. (Id. at pp. 371-376.) The court explained its 

reasoning, stating:

"The expert testimony in question does not seek to take over the 

jury's task of judging credibility: as explained above, it does not tell 

the jury that any particular witness is or is not truthful or accurate in 

his identification of the defendant. Rather, it informs the jury of 

certain factors that may affect such an identification in a typical 

case; and to the extent that it may refer to the particular 

circumstances of the identification before the jury, such testimony is 

limited to explaining the potential effects of those circumstances on 

the powers of observation and recollection of a typical eyewitness. 

The jurors retain both the power and the duty to judge the credibility 

and weight of all testimony in the case, as they are told by a standard 

instruction.

"Nor could such testimony in fact usurp the jury's function. As is 

true of all expert testimony, the jury remains free to reject it entirely 

after considering the expert's opinion, reasons, qualifications, and 

credibility. Indeed, the Penal Code commands (§ 1127b) that an 

instruction so informing the jury be given in any criminal trial in 

which expert opinion evidence is received." (People v. McDonald, 

supra, 37 Cal.3d at pp. 370-371, fns. omitted.)

 

4 We note Shomer was also the expert witness involved in McDonald. (McDonald, 

supra, 37 Cal.3d at p. 361.)
9

Based on the record in that case, the court further concluded the trial court's error was 

prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836, and required reversal of 

the defendant's conviction. (McDonald, supra, 37 Cal.3d at p. 376.)

Arce argues McDonald's language regarding expert witness testimony on 

eyewitness identification does not support the special instruction requested by the 

prosecutor and given by the trial court in this case. However, even if McDonald's 

language does not support the special instruction, Arce nevertheless has not carried his 

burden on appeal to show the trial court erred. We are not persuaded the special 

instruction's language incorrectly stated the law and, more importantly, that the trial 

court's instructions as a whole were incorrect. (People v. Rundle, supra, 43 Cal.4th at 

p. 149; People v. Castillo, supra, 16 Cal.4th at p. 1016.) The mere fact McDonald may 

not have supported the second sentence of the special instruction does not prove, in itself, 

that the court's special instruction or its instructions as a whole were incorrect.

Arce does not cite any case or other authority as support for his assertion that an 

expert witness is entitled to express an opinion on the presence or absence of certain 

factors that may affect an eyewitness identification in a particular case. To the extent he 

relies on language from McDonald, we believe he overstates its import. McDonald stated 

that an expert witness may "inform[] the jury of certain factors that may affect such an 

identification in a typical case; and to the extent that it may refer to the particular 

circumstances of the identification before the jury, such testimony is limited to 

explaining the potential effects of those circumstances on the powers of observation and 
10

recollection of a typical eyewitness." (McDonald, supra, 37 Cal.3d at pp. 370-371, italics 

added.) Therefore, the court concluded, in effect, that an expert witness may discuss 

certain factors that affect eyewitness identifications in a typical case and, furthermore, 

may refer to certain factors that appear relevant in a particular case, but, in so doing, may 

explain only the potential effects of those factors on a typical eyewitness. There is a 

distinct difference between that permitted expert testimony and Arce's suggestion that an 

expert is entitled to state his or her opinion that certain factors were, in fact, present or 

absent in a particular case. Arce has not carried his burden to persuade us that the second 

sentence of the special instruction was an incorrect statement of law (i.e., instruction that 

"[t]he law does not permit such experts to express an opinion regarding the presence or 

absence of such factors under the particular facts of this case").5 (Cf. People v. Page

(1991) 2 Cal.App.4th 161, 188 [McDonald does not require the trial court to permit 

expert witness to discuss particular evidence in case].)

Assuming arguendo that the second sentence of the special instruction should have 

been modified to conform to McDonald's language, we nevertheless conclude the trial 

court's instructions, as a whole, on expert testimony and eyewitness identification were 

correct and therefore the court did not err by giving the special instruction. The court 

 

5 Although we need not decide this instant question to dispose of this appeal, we 

believe there is merit to the proposition that questions of fact should be decided by the 

jury and not expert witnesses, and the jury should decide the question of fact whether 

certain factors were present or absent in a particular case and how those factors affected a 

particular eyewitness's identification. The special instruction in this case is not clearly an 

incorrect statement of the law.
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instructed with CALCRIM No. 226 on factors the jury may consider in evaluating the 

credibility or believability of witnesses, including identification eyewitnesses. Those 

factors include: "[h]ow well could the witness see, hear, or otherwise perceive the things 

about which the witness testified?" and "[h]ow well was the witness able to remember 

and describe what happened?" More specifically, the court instructed with CALCRIM 

No. 315 on 15 factors the jury should consider in evaluating the identification testimony 

of an eyewitness. Many of those factors coincide with the factors to which Shomer 

testified that may affect an eyewitness's identification (e.g., lighting, weather conditions, 

distance, duration of observation, stress during observation, and cross-racial 

identification). The court also instructed with CALCRIM No. 332 on expert witness 

testimony, stating the jury was required to consider the expert's opinions but was not 

required to accept them as true or correct and could disregard any opinion unsupported by 

the evidence. Given the nature and content of the trial court's instructions as a whole, we 

conclude the court correctly instructed the jury on expert witness testimony, eyewitness 

identifications, and how the jury should consider an expert witness's testimony regarding 

certain factors that may affect an eyewitness's identification in a typical case.

C

Assuming arguendo the trial court erred by instructing with the special instruction, 

we nevertheless conclude that error was harmless under the People v. Watson, supra, 46 

Cal.2d 818, standard of prejudice. Under Watson, an error is harmless unless the 

defendant shows it is reasonably probable he or she would have obtained a more 
12

favorable result had the error not occurred. (Id. at p. 836.) Contrary to Arce's assertion, 

the type of assumed instructional error in this case was not equivalent to an abridgement 

of a defendant's constitutional right to present a defense. Therefore, any error is subject 

to the Watson standard rather than the more stringent standard of Chapman v. California

(1967) 386 U.S. 18, 24 (i.e., error is prejudicial unless People show it is harmless beyond 

a reasonable doubt). As the People assert, this case involved, at most, instructional error 

regarding the proper consideration of an expert witness's testimony and did not involve 

the relatively more egregious exclusion of such expert witness testimony in its entirety as 

in McDonald, supra, 37 Cal.3d 351 and People v. Sanders (1990) 51 Cal.3d 471, 506, 

both of which applied the Watson standard of prejudice. Based on our review of the 

whole record, including the evidence regarding Morales's identification of Arce and 

circumstantial evidence tying Arce to the crime, and the trial court's instructions, 

including CALCRIM Nos. 226 (on credibility of witnesses), 315 (on eyewitness 

identification testimony), and 332 (on expert witness testimony), we conclude it is not 

reasonably probable Arce would have received a more favorable outcome had the court 

not given the special instruction. (Watson, supra, 46 Cal.2d at p. 836; People v. Sanders, 

supra, 51 Cal.3d at p. 506.) Morales did not equivocate in his identification of Arce. 

Arce's DNA was found on the driver's side of the Mustang, which belonged to his 

nephew. Hi nephew was staying with Arce at the time. Morales's generator was found 

where he described it being thrown from the Mustang during the chase. Finally, Arce 

does not cite to any testimony by Shomer stating his opinion regarding the presence or 
13

absence of eyewitness identification factors in this case that would have arguably been 

negated by the special instruction given by the trial court. Accordingly, the trial court's 

instructional error, if any, was harmless and does not require reversal of Arce's 

convictions.

III

Count 3 Conviction

Arce contends the trial court erred by awarding him 679 days of credit for his 

count 3 misdemeanor conviction for hit and run driving (Veh. Code, § 20002, subd. (a)). 

The People apparently agree the court should not have awarded him 679 days of credit 

for count 3, but note the trial court did not impose any sentence for count 3 and therefore 

assert remand for resentencing is required. We agree with the People's position.

The record shows the trial court denied probation for Arce's count 3 conviction 

and awarded him credit for time served, which totaled 679 days of credit. However, the 

court did not impose any sentence on Arce for his count 3 conviction. A court has a duty 

to pronounce judgment on each count of which a defendant is convicted. (Hoffman v. 

Superior Court (1981) 122 Cal.App.3d 715, 724.) The court erred by not imposing any 

sentence for Arce's count 3 conviction. On remand, the court shall impose an authorized 

sentence for that conviction and award him appropriate credits toward that sentence for 

time served.
14

DISPOSITION

The judgment is reversed to the extent the trial court did not impose a sentence on 

Arce for his Vehicle Code section 20002, subdivision (a), conviction, and the matter is 

remanded for resentencing. In all other respects, the judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.