Opinion
2d Crim. No. B224396 Super. Ct. No. BA365391
12-19-2011
THE PEOPLE, Plaintiff and Respondent, v. DEON STILLWELL, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County)
Deon Stillwell appeals the judgment following his convictions for firing at an inhabited dwelling (Pen. Code, § 246), and unlawful possession of a firearm (§ 12021, subd. (a)(1)). The jury found to be true an allegation that he fired at the dwelling for the benefit of a criminal street gang. (§ 186.22, subd. (b)(4).) Stillwell admitted a prior firearm possession conviction and serving a prior prison term. (§§ 12025, subd. (a)(2), 667.5, subd. (b).) He was sentenced to 15 years to life for firing at an inhabited dwelling as set forth in section 186.22, subdivision (b)(4)(B), and also received a consecutive term of eight months for firearm possession.
All statutory references are to the Penal Code unless otherwise stated.
Stillwell contends he received ineffective assistance of counsel and also claims instructional error. We affirm.
FACTS
On the evening of June 7, 2009, Iliana Vargas was watching television at her home at 526 West 62nd Street, Los Angeles. Vargas heard the sound of a car outside her home followed by gunfire. She went to her closed screen door, looked outside, and saw men in the street firing guns towards a nearby house at 516 West 62nd Street. Two men ran down the street in the direction of Vargas's home. One man, Stillwell, was holding a black revolver and a second man had a slightly larger gun. She got a good look at Stillwell and described him as six feet tall, skinny, and wearing a brown T-shirt and brown pants. The other man was stockier. Vargas called the police.
Officer Gabriel Holguin of the Los Angeles Police Department had been patrolling the area a few minutes earlier in the evening and saw Stillwell, codefendant Dorian Nezey, and two other men near 59th Street. Stillwell was wearing a brown T-shirt. All four men were members of a criminal street gang.
Approximately 10 minutes later, Holguin and his partner received a radio call of the shooting at 516 West 62nd Street, and reached the scene one or two minutes later. Holguin saw a spent shotgun shell on the sidewalk, bullet impact marks on the wall of the house, and other damage from a shotgun strike. He also found three bullet holes in cars parked on the north and south side of the street.
Witnesses directed the police officers to 533 1/2 West Gage Avenue which was a block from the shooting scene. The officers found a loaded shotgun and shotgun shells in the residence as well as a revolver with five spent casings. Holguin believed that Stillwell may have been involved in the shooting. Stillwell was found and detained by other police officers. Approximately two hours later, Holguin brought Vargas to the location where Stillwell was being detained with another man. Vargas identified Stillwell as one of the shooters.
During Vargas's testimony at trial, Stillwell and codefendant Nezey were asked to stand up at the defense table. The prosecutor then asked Vargas if either man looked "familiar" to her. Vargas answered, "no." When asked whether Vargas meant Stillwell was not the man she saw at the shooting or only that she just did not recognize him, Vargas answered, "I don't recognize them." Later, Vargas testified that Stillwell's hairstyle, eyeglasses and sideburns at trial were unfamiliar to her, but that his height, weight and "look of his face" were familiar to her.
DISCUSSION
Assistance of Counsel Not Ineffective
Stillwell contends his trial counsel provided ineffective assistance by failing to present evidence from an eyewitness identification expert at trial. We disagree.
To establish inadequate assistance, a defendant must show counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. (People v. Vines (2011) 51 Cal.4th 830, 875-876.) "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (Strickland v. Washington (1984) 466 U.S. 668, 687.) In addition, the defendant must show prejudice from the deficient representation. (Ibid.) Prejudice requires a reasonable probability the defendant would have received a more favorable result without counsel's deficiency. (Ibid.)
To establish deficient performance by counsel, the record must affirmatively negate any conceivable tactical purpose for counsel's action or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442.) The decision to present evidence or object to evidence is inherently tactical and will seldom establish ineffective performance. (People v. Stanley (2006) 39 Cal.4th 913, 955.)
Here, a critical element of the defense was misidentification, and Stillwell argues at length on appeal that the Vargas identification made in a field show-up was suspect and unreliable. In particular, Stillwell argues that Vargas saw the person for only a few seconds from some distance while he was running with another man, the men were carrying and shooting guns, Vargas was under stress due to the violent situation, and Stillwell was African-American and Vargas was Hispanic. Stillwell also emphasizes that Vargas failed to identify Stillwell as the shooter during her trial testimony.
We agree that a large body of scientific research indicates that eyewitness identification under these circumstances is unreliable. In a very recent case, the New Jersey Supreme Court stated: "Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real." (State v. Henderson (2011) 208 N.J. 208 [27 A.3d 872, 878].)
We do not agree, however, with Stillwell's contention that failure to present expert testimony caused his counsel's performance to fall below an objective standard of reasonableness. Counsel reasonably could have concluded that presenting expert testimony would not have been helpful to the defense in light of the trial court's instructions to the jury regarding eyewitness identification, a lay jury's understanding of the factors affecting the reliability of eyewitness identification, the eyewitness's own trial testimony, and trial counsel's vigorous argument. Accordingly, we conclude that Stillwell has not shown his counsel's failure to call an expert constituted ineffective assistance.
The trial court gave instructions to the jury that recited numerous pertinent factors to consider in evaluating the reliability of eyewitness identification. (CALCRIM No. 315.) Among other things, the court instructed the jury to consider how well the witness saw the defendant, the duration of observation, whether the witness was under stress, the length of time that passed between the event and the identification, if the witness picked the perpetrator out of a group or in a lineup, whether the witness changed his or her mind about the identification, and whether the witness and defendant were of different races. Such instructions covered the same subjects that would have been covered by expert testimony, and carried the weight of a direction from the court.
In its entirety, the CALCRIM No. 315 instruction given by the trial court provided:
"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:
• Did the witness know or have contact with the defendant before the event?
• How well could the witness see the perpetrator?
• What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation?
• How closely was the witness paying attention?
• Was the witness under stress when he or she made the observation?
• Did the witness give a description and how does that description compare to the defendant?
• How much time passed between the event and the time when the witness identified the defendant?
• Was the witness asked to pick the perpetrator out of a group?
• Did the witness ever fail to identify the defendant?
• Did the witness ever change his or her mind about the identification?
• How certain was the witness when he or she made an identification?
• Are the witness and the defendant of different races?
• [Was the witness able to identify other participants in the crime?]
• [Was the witness able to identify the defendant in a photographic or physical lineup?]
• Were there any other circumstances affecting the witness's ability to make an accurate identification?
The trial court also instructed the jury with CALCRIM No. 226 concerning witness testimony in general. The instruction directed the jury to consider how well the witness could see, hear, or otherwise perceive the things about which the witness testified, how well the witness was able to remember and describe what happened, and was the witness's testimony influenced by a factor such as bias or prejudice.
Stillwell claims CALCRIM No. 315 is insufficient because it does not explain all relevant factors involved in eyewitness identification. We do not presume that every possible factor is expressly covered by the jury instruction, but it is clear that CALCRIM No. 315, as well as CALCRIM No. 226, provide an extensive and detailed list of relevant factors.
In addition, defense counsel cross-examined Vargas regarding weaknesses in her identification and argued at length to the jury that her identification was unreliable. Counsel discussed the stressful nature of the incident, the brief period of time during which she observed Stillwell, the fact that Stillwell was running, inaccuracies in her physical description, and racial differences between Vargas and Stillwell. Counsel also argued that Vargas did not identify Stillwell from a lineup or other group and did not identify Stillwell as the perpetrator at trial.
Stillwell claims that questions asked during deliberations indicate the jury was concerned about the identification and needed expert testimony. Jury questions suggest the jury was keenly aware of the shortcomings of eyewitness identification but, if anything, such awareness negates the need for expert testimony. As our Supreme Court has stated, "[e]xpert testimony on the psychological factors affecting eyewitness identification is often unnecessary." (People v. Lewis (2006) 39 Cal.4th 970, 995.) The record as a whole shows that the absence of expert testimony did not impede Stillwell from presenting a defense of mistaken identity. (People v. Goodwillie (2007) 147 Cal.App.4th 695, 725.)
Stillwell relies on People v. McDonald (1984) 37 Cal.3d 351, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, in support of his claim that calling an eyewitness expert to testify for the defense was essential in this case. In McDonald, our Supreme Court held that the trial court abused its discretion in precluding the defense from introducing expert testimony on the reliability of eyewitness identification. (McDonald, at p. 361.) McDonald provides no support, however, for Stillwell's argument that failure to offer such testimony constituted ineffective assistance of counsel. "[T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion; . . . 'we do not intend to "open the gates" to a flood of expert evidence on the subject.' [Citation.] We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court's discretion in this matter." (Id. at p. 377, fn. omitted.)
No Error in Failure to Instruct Jury on Self-Defense
Stillwell contends that the trial court erred when it refused his request to instruct the jury on self-defense. We disagree.
A trial court in a criminal case has a duty to instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. (People v. Martinez (2010) 47 Cal.4th 911, 953; People v. Blair (2005) 36 Cal.4th 686, 744.) The duty extends to instructions on a defense supported by substantial evidence, and not inconsistent with the defendant's theory of the case. (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) For this purpose, substantial evidence is evidence a reasonable jury could find persuasive. (People v. Wilson (2008) 43 Cal.4th 1, 16.) There is no duty, however, to instruct when evidence supporting the defense is minimal or insubstantial. (Blair, at p. 745.) We independently review the record when the trial court refuses a proposed instruction for lack of substantial evidence. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.)
Stillwell claims that evidence supports a defense of self-defense because it is consistent with a "shootout" by opposing parties rather than the targeting of a particular inhabited dwelling. He refers to testimony from Officer Holguin that it was possible that shots were fired from more than one direction, testimony from Vargas that she thought she heard arguing from the house some time before the shooting, and evidence that three cars were hit by bullets.
We do not believe this evidence qualifies as substantial evidence supporting self-defense. There is no evidence other than unfounded conjecture that there was a confrontation and fight between two opposing sides. The evidence shows that shots were fired at an inhabited dwelling and bullets went in several directions. Even if there was evidence of a "shootout," the evidence would not support a self-defense theory.
Self-defense requires an actual and reasonable belief in the need to defend against an imminent danger of death or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Here, there is no evidence that Stillwell was in imminent danger of death or bodily injury or reasonably believed he was in danger. There is no evidence that a quarrel or altercation was initiated by anyone other than Stillwell, no evidence that anyone posed a physical threat to Stillwell, and no evidence that Stillwell was forced to defend himself. (See People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)
Additional Limiting Instruction Not Required
Stillwell contends that the trial court erred by refusing to give a CALCRIM No. 303 limiting instruction. He argues the instruction was required because testimony by Officer Holguin implied that witnesses other than Vargas had identified Stillwell as the perpetrator. We disagree.
Respondent cites authority that a trial court has no duty to give a limiting instruction absent a request (People v. Cowan (2010) 50 Cal.4th 401, 479), but does not contend that Stillwell's argument has been forfeited. In any event, the record shows that defense counsel indirectly requested the instruction and the court expressly declined the request.
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"When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Evid. Code, § 355, italics added.) CALCRIM No. 303 sets forth a standard form for such an instruction, and provides: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." The court has discretion to give the limiting instructions at the time the evidence is admitted or at the close of evidence. (People v. Dennis (1998) 17 Cal.4th 468, 533-534.)
Officer Holguin testified that, after finding firearms and ammunition at the 533 1/2 West Gage Avenue residence, he went to Stillwell's home. When asked why he went to Stillwell's home, Holguin testified: "Based on the description of the suspects that were given to us over the radio from different people calling and also with speaking with people on the street that had seen two suspects running, the descriptions that they were giving matched the descriptions of Mr. Stillwell and Mr. Nezey."
The trial court overruled a hearsay objection to this testimony, stating that the testimony would be allowed "to explain why the officer felt he might have suspects in mind." The court then stated: "So it's not offered for the truth of anything other than simply relevance to show why the officer felt he may have an idea he [Stillwell] might have been involved."
We conclude that this limiting instruction given by the trial court at the time of the relevant testimony was sufficient to satisfy the requirements of Evidence Code section 355. A reasonable jury would have understood the instruction as requiring it to consider the challenged evidence for the limited purpose of showing the steps in Officer Holguin's investigation.
Stillwell argues that the jury's request for a re-reading of Officer Holguin's testimony reveals that the jury had "forgotten" the limiting instruction given by the trial court at the time of the testimony. There is nothing in the record to suggest that the jury forgot the instruction and we presume the jury understood and followed the court's instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.)
No Cumulative Error
Stillwell contends the cumulative effect of the alleged errors combined to deprive him of a fair trial and due process. (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Because we reject all of the claims of error, there can be no cumulative error. (People v. Avila (2006) 38 Cal.4th 491, 608.)
He also asserts that certain remarks made by the prosecutor during argument "are not sufficiently prejudicial to warrant argument under a separate heading" but "merit consideration as an additional source of prejudice." Because Stillwell does not claim prejudicial prosecutorial misconduct, the claim cannot be considered either independently or as part of a cumulative error claim.
Moreover, with one exception, Stillwell fails to provide citations to the record specifically identifying the remarks and, therefore, any claim regarding the remarks is forfeited. (People v. Hovarter (2008) 44 Cal.4th 983, 1029; People v. Stanley (1995) 10 Cal.4th 764, 793.) And, to the extent this court has been able to locate them in the record, Stillwell failed to object and, thereby, forfeited any claim of error. (People v. Demetrulias (2006) 39 Cal.4th 1, 30-31.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
COFFEE, J.
John S. Fisher, Judge
Superior Court County of Los Angeles
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty."