Opinion
E072371
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. ALONZO OROZCO, Defendant and Appellant.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kelley A. Johnson and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR030622) OPINION APPEAL from the Superior Court of San Bernardino County. Michael L. Knish, Judge. Affirmed. David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kelley A. Johnson and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant, Alonzo Orozco, guilty of the second degree murder of Christopher White (Pen. Code, § 187, subd. (a), count 1) and possessing a firearm as a felon (§ 29800, subd. (a)(1), count 2). In the murder count, the jury also found a gang enhancement allegation true (§ 186.22, subd. (b)(1)(C)) and that defendant personally and intentionally discharged a firearm, causing White's death (§ 12022.53, subd. (d)).
Undesignated statutory references are to the Penal Code.
Defendant admitted a prior strike conviction (§ 667, subds. (b)-(i)), a prior serious felony conviction (§ 667, subd. (a)) and two prison priors (§ 667.5, subd. (b)). In 2019, defendant was sentenced to 70 years to life in prison.
Defendant's 70 year-to-life sentence is comprised of 30 years to life (15 years to life, doubled, due to defendant's prior strike conviction) for the murder conviction in count 1, plus 25 years to life for the personal discharge enhancement, plus 10 years for the gang enhancement, plus five years for the prior serious felony conviction, and a concurrent three-year term (the upper term) for the firearm possession conviction. The court struck the two prison priors.
In this appeal, defendant claims the trial court committed two instructional errors, which violated his due process rights: (1) giving CALCRIM No. 315, because it instructed the jury to consider, among numerous other factors, an eyewitness's certainty in identifying him in determining the accuracy of the eyewitness's identification; and (2) giving CALCRIM No. 334, rather than CALCRIM No. 335, on accomplice testimony, because he claims the evidence showed that two witnesses named in the instruction, Jose Flores and Rene Romero, were his accomplices as a matter of law.
Defendant further claims his counsel rendered ineffective assistance in failing to move to exclude another witness's identifications of him from a photo lineup and at trial as impermissibly suggestive and unreliable, respectively. Lastly, he claims the cumulative effect of the trial court's instructional errors and his counsel's error rendered his trial fundamental unfair and requires that he be granted a new trial.
We conclude that defendant's claims lack merit and affirm the judgment.
II. FACTS AND PROCEDURE
A. The June 25, 2016 Shooting
On June 25, 2016, at about 1:26 a.m., defendant drove his white Toyota Camry, which was missing its rear hubcaps, to Enrique Espinoza's house in Fontana. Espinoza was an East Side Latin King gang member, and members of the gang hung out at his house. When defendant drove into Espinoza's driveway, two East Side Latin King members, Flores and Romero, were with him. Another East Side Latin King gang member, defendant's nephew, Guillermo Orozco, was present at Espinoza's house that night. Defendant was a member of another Fontana gang, the West Side Diablos, but he hung out "a lot" at Espinoza's house. The East Side Latin King gang members hung with defendant because he was Guillermo's uncle.
After defendant drove into Espinoza's driveway, at 1:26 a.m., Guillermo handed defendant a .22-caliber handgun. According to Espinoza, "everyone" who hung out at his house knew he kept a .22-caliber handgun in his backyard. Defendant, Flores, and Romero then left in defendant's Camry. Defendant was still driving, they left Espinoza's driveway at 1:32 a.m., and headed toward Merrill Street. Espinoza recalled that Flores was in defendant's front passenger seat and Romero was in the backseat when they left his house. A surveillance camera located across the street and in front of Espinoza's house captured the Camry entering Espinoza's driveway at about 1:26 a.m. and leaving at about 1:32 a.m. It also showed that the Camry's right rear hubcap was missing.
Around 1:30 a.m., White was walking his girlfriend, M. Miranda, to her home after the two of them had been at a party. White was walking "a little bit behind" Miranda on Merrill Street, a short distance from Enrique's house, and defendant was driving on Merrill in the opposite direction. Defendant stopped his car in the street, two car lanes away from where Miranda and White were walking. With the driver's window down, defendant challenged White by asking, "Where you from?"
In response, White said, "What?" Miranda said, "Nowhere. Stop. Not from anywhere." Defendant again asked, "Where are you from?" White again responded, "What?" White then stepped off of the sidewalk, walked around the back of the Camry, hit the Camry with something, and approached the front passenger door. From his driver's seat, defendant turned to his right, extended his right arm, pointed a firearm at White through the right rear passenger window, and fired two shots. White fell to the ground, and Miranda ran to him. Miranda could hear the occupants of the Camry laughing as defendant drove away.
Miranda called 911. A good Samaritan was driving by, noticed White in the street, and stopped and assisted White and Miranda. White was struck by two bullets in the chest. Police arrived at about 1:40 a.m., followed, around four minutes later, by paramedics. The paramedics pronounced White dead at 1:52 a.m. A shell casing found at the scene was consistent with a .22-caliber casing.
A nearby surveillance camera captured part of the shooting, but a tree blocked other parts of it. The video showed a white car stopped in the middle of the street near White and Miranda, White approaching the car, and two rapid flashes. The flashes appeared to come from the rear passenger side window, and the car appeared to have a missing hubcap.
A forensic pathologist examined White's body and found two entry wounds in the left upper chest. One of the bullets exited through the back. The other exited the right chest cavity, entered the upper right arm, and exited through the outside of the upper right arm. There were no bullets in the body. The trajectory of the bullet that exited the back was consistent with being fired from the driver's seat of a vehicle as White leaned toward the car. The trajectory of the other bullet was consistent with being fired by the driver after White stood up and turned to his right. No soot or stippling was on either entry wound, indicating that the muzzle of the gun was "at least two feet away" from White when it was fired.
Defendant was arrested on June 30, 2016, after officers stopped him in his white Camry. He admitted the Camry was his. At the time of the shooting, defendant was 35 years old, Flores was 15, Romero was 26, Espinoza was 25, and Guillermo was approximately 23. B. Miranda's Pretrial Statements, Photo Lineup Identification, and Trial Testimony
Officers questioned Miranda at the scene of the shooting. At first, Miranda was "frantic," "in shock," and at times "hysterical." At trial, she explained that, even though she knew the answers to the officers' questions, she sometimes said she did not know the answers because she was focused on White and their young children, rather than on the questions.
The police interviewed Miranda in two segments, and her two-part interview was recorded and played for the jury. In the first part of her interview, Miranda could not describe the car or its occupants. She said the car was a four-door sedan, but she said she had "no idea" what color it was or how many people were in the car. At trial, she explained that she was frustrated, focused on White and their children, and wanted the officers to leave her alone. When asked if the suspects were Hispanic, black, or white, she first answered, "I have no idea." Then, after an officer asked if the suspects were "Hispanic gangsters," Miranda said, "Sure. Yeah."
In the second part of her interview, Miranda was more calm and gave more detailed answers. She said the vehicle was a "lighter colored," "longer," and "older sedan." She did not see the gun or see whether the suspects displayed hand sings, because she was not wearing her glasses. She said the suspects did not sound like they were white. Rather, "[t]hey sounded like they were . . . Mexican or black." Immediately thereafter, she said "they didn't look black, they looked Mexican." She said White was not in a gang.
Around one week after the shooting and her interview, Miranda identified defendant from a six-person photo lineup as the shooter. Before she viewed the lineup, she read and signed a document admonishing her that the shooter may or may not be in the lineup, that she was "not under any obligation to identify anyone," and that it was "just as important to free an innocent person" as it was to identify a guilty one.
Defendant's lineup photo had a blue back ground, the five other photos had grey backgrounds, and defendant's photo was slightly shorter than the five other photos. On the same day she identified defendant's photo in the lineup, Miranda identified a photo of the Camry involved in the shooting, noting she remembered that it had three different colors and was a missing a rear hubcap.
The detective who presented the photo lineup to Miranda was on "injury leave" during trial and did not testify. The investigating officer testified that he did not know whether the detective had created the lineup, or why defendant's photo was the only photo with a blue background. Although the detective knew which photo was defendant's, he did not ask another officer to present the lineup to Miranda.
When defense counsel asked about her photo identification at trial, Miranda said she did not notice that defendant's photo was smaller than the other photos. She also said that two of the six photos had blue backgrounds: photograph one (defendant's photo) and photograph five. She also knew that the suspects were Hispanic. Again, she explained that she initially answered the officers' questions the way she did because she was angry and focused on White and their children.
Miranda identified defendant at trial as the person who challenged White. She saw defendant in the driver's side of the car. There were three people in the car. As White approached the passenger's side, defendant turned his right shoulder toward White before she heard gunshots and saw "the gun flash." She saw defendant's face, and she heard "everybody laughing" in the car as it slowly drove away. She thought they were going to come back and kill her because she had witnessed the shooting. C. Flores's Trial Testimony and Prior Interview Statements
Flores testified at trial after being granted immunity from prosecution earlier that day. Espinoza's house was a gang hangout, and Flores had seen defendant at the house "a few times." At Espinoza's house on the night of the shooting, he and Romero got into a white car that defendant was driving. He thought defendant was going to drive him home, but defendant instead drove to Merrill Street and "hit . . . up" or "gang banged" a man who was walking on the sidewalk by asking the man where he was from. Flores had never seen the man before, and the man was with a woman. The man walked around the car and tried to hit it with something. Defendant then shot the man twice, by extending his right arm, and the man fell. Flores believed that defendant shot the man through the rear passenger's side window.
Flores denied he knew there was a gun in the car. He also denied that he, defendant, and Romero planned to go "gang banging" or "hit up" the man when they saw him. He claimed he was in the backseat and Romero was in the front passenger seat at the time of the shooting. In the car after the shooting, defendant told Flores not to say anything about the shooting. Defendant then took Flores home and drove away with Romero.
Flores knew that Romero and Guillermo were "part of [the] East Side Latin Kings" but he denied he was a member of the gang. He admitted he associated with the gang, but claimed he stopped considering himself an associate sometime in 2016. He also denied being arrested on May 30, 2016, for "banging on somebody" and punching the victim, but other evidence showed he was arrested in May 2016 after asking people "what they bang."
Flores and Romero were arrested on July 1, 2016, at the home of Raul, another East Side Latin King gang member. Flores ran when the police came to Raul's house because he knew the police were looking for him. Later that day, Flores talked to the police for around one hour, and his interview was recorded. Regarding his interview, Flores testified that when he said anything different from the officers' version, they yelled at him and threatened to charge him with murder. They also told him his mother's heart would be broken, and his younger brother would have no father figure in his life. The police kept calling him a liar and gave him a choice: "Either adopt their version or be a defendant."
Flores's recorded interview was not admitted into evidence.
Flores admitted he initially lied during his interview. He explained that he lied because, in the gang culture, there were consequences "for speak[ing] on other people." But, during his interview, the police never told him that defendant was the shooter. Rather, near the end of the interview, he identified defendant from a photo lineup as the shooter. He never identified anyone other than defendant as the shooter. D. Romero's Trial Testimony and Prior Interview Statements
Romero also testified at trial after being granted immunity from prosecution on the day he testified. On the night of the shooting, Romero, Flores, and others were at Espinoza's house. Romero drove to the house in his own car. Around 1:30 a.m., Romero got into a car defendant was driving. Contrary to Flores's testimony but consistent with Espinoza's, Romero testified that he was in the backseat of defendant's car and Flores was in the front passenger seat. They went to Merrill Street where they saw a man following a woman. As Romero saw it, "the girl was being followed."
Defendant "confronted" the man by saying something like, "Hey, what's up, fool?" The man "was pissed off," came to the car, walked around the back of the car, punched the car a couple of times, then walked around to the rear passenger side. Defendant put the right rear passenger window down, "quickly . . . reached backwards" and to the right, toward the right rear passenger window, and shot the man. The man fell and defendant drove away. When defendant fired the gun, a shell casing bounced off of Romero's head. Romero denied seeing "anyone pass the gun around before they got into the car." He also denied laughing after the shooting.
Immediately after the shooting, Romero feared for his life and asked defendant to let him out of the car. Defendant "hesitated" and asked Flores if he should let Romero out. Flores made a gesture indicating that it was okay to let Romero out, so defendant stopped the car and let Romero out. Romero then ran back to Espinoza's house, got into his own car, and drove himself home. The surveillance camera located across the street from and in front of Espinoza's house captured Romero running into Espinoza's driveway at 1:41 a.m., turning around, getting into a car parked on the street, and driving away. Romero testified that he was going to tell everyone at Espinoza's house about the shooting, but he paused in the driveway, got into his car, and left.
The day after the shooting, Romero resumed hanging out with members of the East Side Latin King gang. He claimed he dropped out of the gang in 2016, before the shooting. But he still hung out with its members because he did not want them to know he was leaving the gang.
Like Flores, Romero was interviewed by the police on July 1, 2016, after he was arrested that day. Romero initially denied knowing anything about the shooting. At trial, he explained that he did not initially tell the truth during his interview because he did not want to be labeled "a snitch." But during the latter part of his interview, following an unrecorded conversation with an officer, Romero told "the truth." He described the incident in detail, and his interview statements were consistent with his trial testimony. He also said that two shots were fired, and that the victim "stayed up after the first shot, but he went down after the second shot." E. Expert Gang Testimony
A gang expert testified that Flores, Romero, Guillermo Orozco, and Espinoza were all East Side Latin King members at the time of the shooting. Although defendant had tattoos indicating membership in the West Side Diablos, he was an active participant in the East Side Latin Kings based on his association with the gang's members and his conduct on the night of the shooting. In the gang culture, White's act of walking up to defendant's car after defendant's "banged on" White was a form of disrespect to defendant.
White's murder benefitted the East Side Latin Kings by enhancing its reputation, instilling fear of the gang in the community, and emboldening the gang's members to commit other crimes. The murder also benefitted the gang because defendant was "patrolling" the gang's territory with two of its members, and the murder was committed "in conformance with" that "mission." The crime was also committed in association with the gang because the gang's gun was used in the shooting, and because White was shot in the presence of gang members who could "tell the story" to others.
III. DISCUSSION
A. CALCRIM No. 315 is Correct Under Current Law, and Any Error in Failing to Exclude the Certainty Factor from the Instruction Was Harmless
Defendant claims the trial court violated his state and federal due process rights by instructing the jury pursuant to CALCRIM No. 315, the standard instruction on evaluating eyewitness identifications. As pertinent, the instruction told the jury that an eyewitness's level of certainty in identifying a defendant is a factor the jury is to consider in evaluating the truthfulness and accuracy of the eyewitness's identification testimony.
CALCRIM No. 315 (Eyewitness Identification) instructed: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] . . . [¶] How certain was the witness when he or she made an identification?" --------
Defendant argues that the "certainty" factor of the instruction is contrary to studies showing that a witness's level of certainty in the accuracy of the witness's identification has no correlation or, at best, a weak correlation, with the accuracy of the identification. Thus, he argues, giving CALCRIM No. 315 violates due process.
The Attorney General argues defendant forfeited this claim of error because he did not ask the court to modify CALCRIM No. 315 by omitting the certainty factor. We agree. (People v. Sanchez (2016) 63 Cal.4th 411, 461-462 (Sanchez) [defendant forfeited due process challenge to CALJIC NO. 2.92, predecessor to CALCRIM No. 315, by failing to request a modification of the instruction].) The trial courts do not have a duty to give or modify the instruction sua sponte. (People v. Ward (2005) 36 Cal.4th 186, 213-214.) Nonetheless, we consider defendant's due process claim on its merits because it affects his substantial rights. (§ 1259; People v. Prieto (2003) 30 Cal.4th 226, 247.)
The due process claim defendant raises here is pending before the California Supreme Court. (People v Lemcke (June 21, 2018, G054241) [nonpub. opn.], review granted Oct. 10, 2018, S250108.) The claim relies on the prospect that the court will overrule Sanchez and other high court precedents. The Sanchez court rejected a due process challenge to the certainty factor in former CALJIC No. 2.92, the predecessor to CALCRIM No. 315. (Sanchez, supra, 63 Cal.4th at pp. 461-462.) Until a higher court overrules Sanchez and other high court precedents, we are, and the trial court was, bound by these decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction."].)
Given Sanchez and other high court precedents, the trial court did not err in failing to exclude the certainty factor sua sponte from CALCRIM No. 315. As Sanchez explained: "Studies concluding there is, at best, a weak correlation between certainty and accuracy are nothing new. . . . In People v. Wright (1988) 45 Cal.3d 1126, 1141, we held 'that a proper instruction on eyewitness identification factors should focus the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.' We specifically approved CALJIC No. 2.92, including its certainty factor. (Wright, at pp. 1144, 1166 [appendix]). We have since reiterated the propriety of including this factor. (People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232.)" (Sanchez, supra, 63 Cal.4th at p. 462.)
Additionally, the inclusion of the certainty factor in CALCRIM No. 315 did not prejudice defendant. For several reasons, it is not reasonably probable that defendant would have realized a more favorable result, including a hung jury on either charge or enhancement allegation, had the certainty factor been excluded from CALCRIM No. 315. (Sanchez, supra, 63 Cal.4th at pp. 462-463; People v. Ward, supra, 36 Cal.4th at p. 214; People v. Soojian (2010) 190 Cal.App.4th 491, 520.)
First, CALCRIM No. 315 listed the certainty factor in a neutral manner, among many other factors a jury may consider in evaluating the truthfulness and accuracy of an eyewitness identification. (People v. Wright, supra, 45 Cal.3d at p. 1141.) CALCRIM No. 315 did not "suggest that certainty equals accuracy." (Sanchez, supra, 63 Cal.4th at p. 462.)
Second, the certainty factor was relevant only to the jury's evaluation of the truthfulness and accuracy of Miranda's eyewitness identifications of defendant as the shooter, but Miranda's identifications were far from the only evidence that defendant was the shooter. Flores and Romero testified that defendant shot White from the driver's seat of defendant's Camry, through the right rear passenger window, and it was undisputed that Flores and Romero were in the Camry at the time of the shooting. Their testimony greatly corroborated Miranda's testimony that she saw defendant's face at the time of the shooting, that defendant moved his right arm when he shot White, and that she saw defendant on the driver's side of the Camry.
Third, Miranda saw that the Camry was missing a rear hubcap, a fact corroborated by the surveillance video that captured part of the shooting and the surveillance video which captured the Camry arriving at and leaving Espinoza's house only minutes before and after the shooting. Defendant was arrested days after the shooting, while driving the Camry with its rear hubcaps missing, and he admitted the Camry was his. Fourth, officers found a .22-caliber shell casing at the scene of the shooting, and Espinoza testified that Guillermo handed defendant a .22-caliber handgun at Espinoza's house, only minutes before the shooting. B. The Trial Court Correctly Gave CALCRIM No. 334 Rather Than CALCRIM No. 335
Defendant claims the trial court violated his due process rights in failing to instruct the jury, pursuant to CALCRIM No. 335, that Flores and Romero were his accomplices in the murder as a matter of law, and accordingly, not to consider their testimony unless it was corroborated, and to view their testimony with caution. Instead of CALCRIM No. 335, the court gave CALCRIM. No. 334, which instructed the jury that it was as to determine whether Flores and Romero were defendant's accomplices, and if so, not to consider their testimony unless it was corroborated and to view it with caution. We conclude that CALCRIM No. 334 was the correct accomplice instruction.
1. Applicable Legal Principles
Section 1111 prohibits a defendant from being convicted on the uncorroborated testimony of an accomplice. "For purposes of this rule, an 'accomplice' is 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' [Citation.] 'This definition encompasses all principals to the crime [citation], including aiders and abettors and coconspirators. [Citation.]' [Citation.] . . . [L]iability as an aider and abettor requires proof that the person in question 'aid[ed] or promote[d] the perpetrator's crime with knowledge of the perpetrator's unlawful purpose and an intent to assist in the commission of the target crime.' [Citation.]" (People v. Manibusan (2013) 58 Cal.4th 40, 93.)
A trial court has a duty to instruct sua sponte on the principles governing the law of accomplices, " '[w]hen there is sufficient evidence that a witness is an accomplice.' " (People v. Tobias (2001) 25 Cal.4th 327, 331.) "Unless there can be no dispute concerning the evidence or the inferences to be drawn from the evidence, whether a witness is an accomplice is a question for the jury. On the other hand, the court should instruct the jury that a witness is an accomplice as a matter of law when the facts establishing the witness's status as an accomplice are ' " 'clear and undisputed.' " ' [Citations.]" (People v. Williams (2008) 43 Cal.4th 584, 636.)
CALCRIM No. 334 is designed to be given when the jury can determine based on substantial evidence that a witness was the defendant's accomplice. It directs the jury to determine whether a witness was an accomplice and, if so, not to consider the witness's testimony unless it is supported by corroborating evidence, connecting the defendant to the crime, and to treat the accomplice's testimony with caution. (CALCRIM No. 334.) It states that it is the defendant's burden to prove that it is more likely than not that the witness was an accomplice. (Ibid.) In contrast, CALCRIM No. 335 is designed to be given when clear and undisputed evidence shows that a witness was an accomplice as a matter of law. It removes the determination of whether a witness was an accomplice from the jury, and it directs the jury not to consider the accomplice's testimony unless it is corroborated and to view it with caution. (CALCRIM No. 335.)
2. Analysis
Defendant claims that Flores and Romero were his accomplices, as a matter of law, in the commission of the murder and the unlawful firearm possession, and that the trial court accordingly erred in giving CALCRIM No. 334 rather than CALCRIM No. 335. He notes the evidence showed that he, along with Flores and Romero, both of whom were East Side Latin King gang members, were "patrolling" the gang's territory when he shot and killed white. The gang expert described "patrolling" as driving around the gang's territory, looking for people who did not belong in it or for an opportunity to commit a crime. The expert also opined that the murder benefited the gang in part because it was committed "in conformance with" the gang's "mission" of patrolling its territory. Defendant also points out that Miranda heard "everyone laughing" in the Camry immediately after the shooting.
Defendant also infers that Flores and Romero were his accomplices as a matter of law from the fact they testified under grants of immunity from prosecution. He also points out that although the prosecutor argued that defendant was the shooter, he alternatively argued that, if defendant was not the shooter, then defendant aided and abetted the shooter based on his actions as the driver at the time of the shooting. He argues that the prosecutor's aiding and abetting theory "implicitly rest[ed] on evidence" that defendant, Flores, and Romero "were on a joint mission on the night of the murder."
We disagree with defendant's arguments. None of the evidence defendant points to, nor any other evidence, clearly and indisputably showed that Flores and Romero were defendant's accomplices as a matter of law. (People v. Anderson (2018) 5 Cal.5th 372, 411 [no error in failing to instruct that witness was accomplice as matter of law]; People v. Whalen (2013) 56 Cal.4th 1, 59-60 [same].) The prosecutor's alternative theory that defendant aided and abetted Flores or Romero in the murder, and that Flores and Romero both testified under grants of immunity from prosecution, were not evidence.
As the Attorney General points out, no evidence showed that Flores or Romero aided and abetted defendant in the murder or in unlawfully possessing the firearm that was used in the murder. "An aider and abettor is one who acts with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense." (People v. Avila (2006) 38 Cal.4th 491, 564.)
Although substantial evidence showed that defendant, Flores, and Romero were "patrolling" the East Side Latin King gang's territory at the time of the murder, and that defendant committed the murder for the benefit of and in association with the gang, no evidence showed that Flores or Romero did anything to aid or promote defendant in shooting White, with knowledge of defendant's criminal purpose. The evidence showed only that Flores and Romero left Espinoza's house with defendant, shortly before the murder; they were with defendant at the time of the murder and may have been laughing after the murder. In sum, no evidence clearly and indisputably showed that Flores and Romero were defendant's accomplices as a matter of law. C. Defense Counsel Was Not Ineffective in Failing to Move to Exclude Miranda's Pretrial and In-Court Identifications of Defendant as the Shooter
Defendant claims his trial counsel rendered ineffective assistance of counsel in failing to move to exclude Miranda's pretrial and in-court identifications of him as the shooter. He argues the pretrial photo lineup, from which Miranda identified him as the shooter, was impermissibly suggestive, and that Miranda's in-court identification of him was unreliable, because the photo lineup "created an unacceptable likelihood" that Miranda misidentified him at trial. We conclude that the photo lineup was not impermissibly suggestive, and that Miranda's identifications of defendant from the photo lineup and at trial were reliable.
A criminal defendant has a Sixth Amendment and a Fourteenth Amendment due process right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684-686.) To prove an ineffective assistance claim, a defendant must show that (1) his counsel's representation fell below an objective standard of reasonableness, and (2) he was prejudiced by his counsel's deficient performance. (Id. at pp. 688, 694; People v. Frye (1998) 18 Cal.4th 894, 979.)
" ' "If the record on appeal shed no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." ' " (People v. Seumanu (2015) 61 Cal.4th 1293, 1312; see People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Defendant argues his counsel was ineffective because "a reasonably competent and zealous advocate would have moved to exclude the unfairly suggestive and unreliable photo lineup and preclude Miranda from making an in-court identification." The use of a photo lineup identification procedure violates a defendant's due process rights " 'if the identification procedure is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." ' [Citation.]" (People v. Sanchez (2019) 7 Cal.5th 14, 35.)
We engage in a two step-process " '[i]n order to determine whether the admission of identification evidence violates a defendant's right to due process of law, . . .' " (People v. Sanchez, supra, 7 Cal.5th at p. 35.) That is, " 'we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.' " (Ibid.; see People v. Cunningham (2001) 25 Cal.4th 926, 989.)
Defendant argues that the six-person photo lineup from which Miranda identified him as the shooter, around one week after the shooting, was unduly suggestive for two reasons: (1) his photo had a "bright blue" background, while the five other photos had grey backgrounds, and (2) his photo was shorter than the five other photos. He argues that the bright blue background in his photo indicated "that the five similar photographs were collected form a single database as fillers, and that [his] photograph was the photograph of the suspect." He maintains that these two differences, in combination, made his photo stand out and suggested that he was the suspect, rendering the photo lineup unduly suggestive and unnecessary.
The photo lineup was not impermissibly suggestive. Defendant's photo was only slightly shorter than the five other photos, and this factor, in combination with the "bright blue" background of defendant's photo, did not make the photo lineup unduly suggestive. Photo arrays are not considered unduly suggestive based on minor variations in the photos' background color and similar, minor differences among the photos. (E.g., People v. Clark (2016) 63 Cal.4th 522, 557 [photo array not unduly suggestive due to variations in background color]; People v. Gonzalez (2006) 38 Cal.4th 932, 943 [photo array not unduly suggestive because the defendant was the only one wearing " 'gang-type' " clothing and because defendant had a " 'droopy eye' "].)
"The question is whether anything caused defendant to 'stand out' from the others in a way that would suggest the witness should select him." (People v. Carpenter (1997) 15 Cal.4th 312, 367.) Here, nothing about defendant's photo lineup, or the circumstances surrounding Miranda's viewing of it, suggested that Miranda should select defendant as the shooter. All six of the men in the photo lineup, including defendant, appeared to be Hispanic men of the same age, complexion, and build; all were bald or nearly bald; and all had similar facial hair. And, before she viewed the lineup, Miranda read and signed a document admonishing her that the shooter may or may not be in the lineup, she was "not under any obligation to identify anyone," and it was "just as important to free an innocent person" as it was to identify a guilty one.
Because the challenged photo lineup was not unduly suggestive, it is unnecessary to determine whether Miranda's identifications of defendant as the shooter from the photo lineup and at trial were reliable. (People v. Alexander (2010) 49 Cal.4th 846, 902 [" 'Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification.' "].) Nevertheless, the totality of the circumstances shows that both identifications were reliable.
As noted, in determining whether an identification was reliable, we consider such factors as (1) the opportunity of the witness to view the suspect at the time of the offense, (2) the witness's degree of attention at the time of the offense, (3) the accuracy of his or her prior description of the suspect, (4) the level of certainty demonstrated at the time of the identification, and (5) the lapse of time between the offense and the identification. (People v Sanchez, supra, 7 Cal.5th at p. 35.)
The record shows that Miranda had an opportunity to see the shooter's face at and around the time of the shooting. She was walking on the sidewalk on Merrill Street, two feet in front of White, when the Camry stopped in the middle of the street, two car lanes away from where Miranda and White were walking. The Camry was heading in the opposite direction that White and Miranda were walking, indicating that its driver was nearer to White and Miranda. And, only one week after the shooting, Miranda identified defendant from the photo lineup as the shooter. Thus, her initial identification was near the time of the crime.
The record also shows Miranda was paying attention to the Camry and its occupants at the time of the shooting. She testified that, when "somebody" from the Camry challenged White by asking "Where you from?" she responded, "Nowhere. Stop. Not from anywhere." She also testified that defendant was on the driver's side of the car and that he turned his right shoulder toward White, after White walked around to the passenger's side of the Camry, and just before she heard gunshots and saw the gun "flash."
Miranda was also very certain about her photo lineup and in-court identifications of defendant as the shooter. At the time of her photo lineup identification, she said, "I know it was number one," referring to the first position of defendant's photo in the lineup. She further explained: "I remember seeing just this ugly ass person. Just this ugly person and that was him." Miranda also did not hesitate in identifying defendant at trial as the shooter. She repeatedly testified that she saw "his [defendant's] face." Additionally, Miranda's identification of defendant as the shooter was corroborated by Flores and Romero. For all of these reasons, Miranda's photo lineup and in-court identifications of defendant were reliable.
Thus, defense counsel did not render ineffective assistance of counsel in failing to move to exclude Miranda's photo lineup and in-court identifications of defendant as unduly suggestive and unreliable. The record reveals a reasonable explanation for defense counsel's failure to make such a motion: it lacked merit. For the reasons explained, the photo lineup was not impermissibly suggestive, and Miranda's identifications of defendant from the photo lineup and at trial as the shooter were reliable. D. There Is No Cumulative Error
Lastly, defendant claims the trial court's instructional errors and his counsel's failure to move to exclude Miranda's identification evidence are cumulatively prejudicial and require a new trial. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Because we have found no individual error, there is no cumulative error. (People v. Jablonski (2006) 37 Cal.4th 774, 832.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. RAPHAEL
J.