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Filed 9/24/20 P. v. Graham CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE JAMES GRAHAM,

Defendant and Appellant.

 A158222

 (Sonoma County Super. 

 Ct. No. SCR7222691)

Jesse James Graham appeals from his conviction after a jury trial for 

stabbing a woman we shall refer to as Jane Doe, who lived in Santa Rosa, a 

block from where Graham stayed with his mother. Graham claims his trial 

counsel provided ineffective assistance by not objecting to lay person opinion 

testimony by two witnesses identifying him on surveillance video recordings 

taken on the night of the incident. We disagree and affirm.

BACKGROUND

In a February 2019 information, the Sonoma County District Attorney

charged Graham with felony assault with a deadly weapon (Pen. Code, § 245, 

subd. (a)(1)) and alleged that he personally inflicted great bodily injury (id.,

§ 12022.7, subd. (a)). A jury trial followed.
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I.

The Attack on Jane Doe

Doe testified through an interpreter that she left work at about 

11:30 p.m. on November 20, 2018, and drove home to her apartment on 

Jennings Avenue. She pulled into her parking lot space about nine yards 

from her apartment and went to the lighted area in front of her door to open 

it, but her key would not work. She heard footsteps behind her, turned and 

saw Graham about three or four feet away dressed in a black cap, his face 

covered below his nose. She was positive it was Graham; he stood out 

because of his facial tattoos and tall, thin stature. She had seen him twice 

before at a local gym but had never spoken to him. He stabbed her in the left 

side of her back with a shiny silver knife, and she yelled. He left, and she 

sought help from neighbors. Later that night, she had surgery at a local 

hospital for a perforated lung. In the early morning following her surgery, 

she spoke to a Detective DeLeon. She “was badly hurt,” in a lot of pain, tired,

and “did not know what was going on.” Nonetheless, she remembered more 

and more about the attack as she spoke to him. As a result of the attack, her 

body was scarred and she had to use a cane to move around. 

Two Santa Rosa police officers testified that they went to Doe’s 

apartment complex shortly after 11:40 p.m. on November 20, 2018, to 

investigate a stabbing incident. Doe was there, crying and screaming in pain. 

Her daughter, acting as translator for Doe, said a man whose identity Doe 

did not know had stabbed Doe in the back. The officers found blood drops in 

front of and on the threshold of her apartment door, which was well lit, and 

found no witnesses to the incident. 

Detective Hector DeLeon of the Santa Rosa Police Department testified 

that he interviewed Doe briefly in a hospital intensive care unit at about 
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10 a.m. on the morning after the incident. She appeared to be uncomfortable 

and in pain, was able to answer all of his questions at first but then seemed 

to “get real tired,” so he stopped the interview. She said she had seen a knife

during the attack and that part of her attacker’s face had been uncovered. 

Asked if her attacker had any distinguishing features, she said “no or she 

couldn’t remember any” (DeLeon could not remember which). Upon further 

questioning, she said “he had a thin face,” and was “a very tall, thin man with 

something covering his face.” Asked about people in her life that she could 

have interacted with and if she had enemies, Doe told DeLeon about a man at 

her gym she was afraid of who had facial and arm tattoos, and said that she 

could “possibly identify the suspect, but she wasn’t certain.” DeLeon said 

nothing to Doe to suggest her attacker was thin or had tattoos on his face or 

arms. 

II.

The Identifications of Graham in Surveillance Videos

A. The Manager of Doe’s Apartment Complex

The manager of the apartment complex at 1090 Jennings (the 

manager), where Doe lived, testified that shortly after midnight on the night 

of the incident officers contacted him, and that together they viewed 

surveillance video recordings taken at the complex that night. The manager 

provided police with footage from around 11:38 p.m. That surveillance video 

of the attack on Doe was shown to the jury, and the manager identified 

Graham as the person in the video stabbing Doe. He testified that when he 

watched the video with police, he identified Graham in “less than a second” 

based on his observations of Graham before the attack. He had seen Graham 

three or four times a week, either around the apartment complex or at a 

nearby gym where the manager regularly worked out, and he had spoken to 
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Graham. The manager told an officer that night that Graham was tall,

skinny, “always at the gym” and lived in a nearby apartment complex. A few 

hours later, he identified Graham from a photo lineup, telling police he was 

“one hundred percent positive” about his identification. 

Along with indicating that Graham was tall and thin, the manager 

testified that Graham had visible tattoos, a “wavy, shaky” walk and stared 

at people. Asked if there was any difference between how Graham looked at 

trial and how he looked at the time of the incident, the manager testified that 

Graham looked much younger and skinnier” and had shorter hair at the time 

of the incident (though he used to always wear a hoodie), as compared to his 

appearance at trial. 

B. The Manager of the Apartment Complex Where Graham

Stayed

The manager of the seniors-only apartment complex where Graham 

stayed with his mother, located at 1080 Jennings, about a block from Doe’s 

complex, also testified (senior apartment manager). She said Graham’s 

mother had lived in a second-floor apartment at the complex for a number of 

years and that she, the senior apartment manager, had seen Graham 

“hundreds and hundreds of times over the years.” He was at the complex 

“basically every single day” and stayed with his mother often, even though 

the complex’s rules limited visitors to two-week stays every six months. 

Graham also sometimes stayed overnight in his mother’s van, parked in 

either the complex’s parking lot or on the street. 

The senior apartment manager further testified that she gave the 

police some surveillance video from the apartment complex that was recorded 

on the night of the incident. The footage was played for the jury; the 

prosecutor stopped it at “114055392” and asked the manager what it 

depicted. The manager was “positive” that it depicted Graham being let into 
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the apartment complex building. The manager also said she had not seen 

anyone else as tall as Graham or with facial tattoos at the apartment 

complex. 

The senior apartments manager was also shown the surveillance video 

of the attack on Doe. She was “positive” that Graham was the attacker, 

noticing the video depicted his “very distinct” “kind of a swagger or slash 

awkward walk” and his tennis shoes. She also noted that Graham was “very 

tall” and “[f]airly slender, lanky.” 

C. Graham’s Mother

Graham’s mother testified that Graham could come to her apartment 

daily and sometimes slept there or in her vehicle. She could not tell if the 

person in the surveillance video of her apartment complex was Graham or if 

she let the person into the building, but she agreed the person was tall and 

wore clothes like her son’s. She could not identify the person in the video of

the attack on Doe. She said she paid for Graham’s memberships at two 

nearby gyms, and that the clothing in a shopping bag seized by police when 

they arrested Graham contained three items of clothing Graham had asked 

her to wash. She was home with him for at least part of the day of the 

incident and could not recall if they had dinner together. Asked if she told

police Graham went out twice that evening, she said he went out once early 

that evening and could not recall the exact time. 

III.

Graham’s Arrest and Interrogation

The morning after the incident, November 21, 2018, police surveilled

the senior apartment complex at 1080 Jennings. Before noon, Graham and 

his mother, who was carrying a shopping bag, came out of the building and 

walked to his mother’s vehicle in the parking lot, and his mother placed her 
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bag in the vehicle’s trunk. Officers took Graham into custody. They found 

two shirts and a camouflage hat in the shopping bag and no other clothing in 

the trunk. Pursuant to a warrant, police searched the mother’s apartment, 

where they found other clothing of Graham’s and a steel-colored, sharptipped kitchen knife tucked away in a chair. 

DeLeon interrogated Graham the day he was taken into custody. 

DeLeon told Graham the police were investigating something serious that 

happened in an apartment complex. Graham said he was at his mother’s 

apartment on night of the incident and did not leave it until the next 

morning. DeLeon told Graham there were surveillance systems at his 

mother’s apartment complex and others nearby, and asked Graham what had 

happened after he left his house the night before. Graham responded, “ ‘well, 

I saw the lady and I thought she was the lady who called me a faggot 

earlier.’ ” Asked what he did, he said, “ ‘probably why you guys—probably 

why you guys picked me up. And—and—and I just got—I just got mad and 

that’s it.’ ” 

A video of the interrogation was played for the jury. A transcript of the 

interrogation contained in the record indicates Graham made statements

consistent with DeLeon’s testimony. Graham also said he was six feet, five 

inches tall and weighed about 200 pounds, gave his mother’s apartment as 

his address, and indicated that he was 40 years old, volunteered at a tattoo 

shop and received social security for anxiety. 

At trial, DeLeon identified photographs of Graham taken on the day of 

the interview and clothing that was taken from Graham that day. The 

photographs show Graham’s face covered with extensive tattoos, both below 

and above his nose, and show him wearing tennis shoes. DeLeon testified
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that spots on Graham’s clothes were tested to determine if they were blood 

and they were not. 

The jury deliberated for a little over two days. At some point on the 

last day, the jury foreperson told the court that after three ballots the jury 

was “pretty strongly deadlocked” 11 to 1 on what constituted reasonable 

doubt and that the foreperson did not think it was reasonably probable the 

jury would reach a unanimous verdict with further deliberations. The court 

then polled each juror. Four indicated it was possible the jury could reach a 

verdict with further deliberations, four were not sure and four did not think it 

was possible. Because the responses of eight of the jurors did not preclude 

the possibility that the jury could reach a verdict, the court instructed the

jurors again on reasonable doubt and ordered them to return at 1:30 p.m. and 

continue deliberations. That afternoon, the jury found Graham guilty of 

assault with a deadly weapon and found the serious bodily injury allegation 

to be true. 

The court sentenced Graham to seven years in prison, consisting of the 

upper term of four years for felony assault with a deadly weapon and three 

years for causing great bodily injury. Graham filed a timely notice of appeal. 

DISCUSSION

Graham argues his trial counsel provided ineffective assistance in 

violation of his constitutional right to effective representation under People v. 

Ledesma (1987) 43 Cal.3d 171 and Strickland v. Washington (1984) 

466 U.S. 668 by failing to object to the two apartment managers’ opinion 

testimony that he was the person depicted in the surveillance videos recorded 

at 1080 and 1090 Jennings on the night of the incident. He is wrong. 

Counsel acted competently because any objection would very likely have been 

overruled as the testimony was plainly admissible. 
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“To prevail on a claim of ineffective assistance of counsel, the defendant 

must show counsel’s performance fell below a standard of reasonable 

competence, and that prejudice resulted. [Citations.] When a claim of 

ineffective assistance is made on direct appeal, and the record does not show 

the reason for counsel’s challenged actions or omissions, the conviction must 

be affirmed unless there could be no satisfactory explanation. [Citation.]

Even where deficient performance appears, the conviction must be upheld 

unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.’ ” ’ ” (People v. Anderson (2001) 25 Cal.4th 543, 569.)

Evidence Code section 800 states, “If a witness is not testifying as an 

expert, his testimony in the form of an opinion is limited to such an opinion 

as is permitted by law, including but not limited to an opinion that is: [¶] (a) 

Rationally based on the perception of the witness; and [¶] (b) Helpful to a 

clear understanding of his testimony.” In People v. Leon (2015) 

61 Cal.4th 569 (Leon), our Supreme Court held “ ‘[T]he identity of a person is 

a proper subject of nonexpert opinion . . . .’ ” (Id. at p. 601.) The court 

observed, “Court of Appeal decisions have long upheld admission of testimony 

identifying defendants in surveillance footage or photographs. In [People v.] 

Perry [(1976) 60 Cal.App.3d 608], the defendant argued an identification had 

to be based on the officer’s perception of a crime. (Perry, supra, 60 

Cal.App.3d at p. 613.) The court disagreed, finding it proper for officers to 

predicate their opinion on ‘contacts with defendant, their awareness of his 

physical characteristics on the day of the robbery, and their perception of the 

film taken of the events.’ (Ibid.) The testimony was also helpful because the 

defendant had changed his appearance by shaving his mustache before trial. 
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(Ibid.) Similarly, the court in [People v.] Mixon [(1982) 129 Cal.App.3d 118]

upheld identification of the defendant in a robbery surveillance photograph 

by officers who had numerous contacts with him and were unequivocal in 

their identification. (Mixon, supra, 129 Cal.App.3d at pp. 130-131; see People 

v. Ingle (1986) 178 Cal.App.3d 505, 514 [allowing similar testimony by 

robbery victim based on her observation of defendant during the crime].)” 

(Id. at p. 600 [upholding the admissibility of the lay opinion of a detective 

who was “ ‘very’ familiar with defendant’s appearance” from observations 

made at the time of defendant’s arrest that the person depicted in 

surveillance videos was defendant].)

Here, the challenged opinion testimony satisfied the requirements of 

Evidence Code section 800, and its admission was consistent with Leon. The 

two apartment managers rationally based their opinions on their own prior

perceptions of Graham. Each testified that prior to the incident he or she had 

seen Graham on numerous occasions and observed key aspects of his 

appearance, such as his height, thinness, tattoos and distinctive gait. From 

their testimony, it is apparent that both were very familiar with his

appearance.

As for whether the apartment managers’ opinions were helpful at trial, 

Graham asserts that “nothing in the record suggests that these apartment

managers were any better equipped to identify the individual in the videos 

than were the jurors themselves” and that “[t]here was no suggestion that 

Graham had changed his appearance between the incident and the trial.” 

These assertions ignore the testimony of the manager of 1090 Jennings that 

Graham “looked much younger and skinnier” and had shorter hair at the 

time of the incident, as compared to his appearance at trial. As indicated in 

Leon and the cases it cites, nothing more was needed to establish the 
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admissibility of the apartment managers’ testimony that Graham was the 

person depicted in the surveillance videos. In view of these cases, Graham’s 

counsel had ample reason not to object. 

In short, Graham’s ineffective assistance claim lacks merit. Having 

rejected the claim on its merits, we need not address his argument that he 

was prejudiced.

DISPOSITION

The judgment is affirmed.
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STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

People v. Graham (A158222)