Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Yvonne T. Sanchez, Judge, Los Angeles County Super. Ct. No. VA097902
Antonio H. Rodriguez and Walter L. Gordon III for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Joseph P. Lee and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
A jury convicted Robert Yanez of robbery and found true a firearm-use enhancement allegation. On appeal Yanez contends the trial court erroneously admitted certain evidence, and defense counsel rendered ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Yanez was charged by information with one count of second degree robbery (Pen. Code, § 211) with a special allegation he had personally used a firearm (Pen. Code, § 12022.53, subd. (b)). The information also alleged Yanez had previously served a separate prison term for a felony (Pen. Code, § 667.5, subd. (b)).
According to the evidence presented at trial, 18-year-old Mario Davalos was at home with his friends and family on the night of October 21, 2006, celebrating his completion of Marine Corps. boot camp. Davalos and his friend Maximiano Poblette went outside to find a parking space for Poblette’s mother. Poblette saw Yanez approach Davalos and order him at gunpoint to empty his pockets. Davalos testified he pulled out his “Support Our Troops” key chain, and Yanez grabbed it from his hand. Yanez inserted an ammunition clip into the gun, chambered a round, and again pointed the gun at Davalos. Davalos was frightened for himself and his family. Yanez then slowly backed up, lowered the gun, and quickly walked away.
City of Maywood Police Officer Jorge Ververa arrived in response to a 911 call and spoke to Davalos about the robbery. Davalos described the robber as a Hispanic male, 5’6” to 5’8” tall, weighing about 160 pounds, and wearing a blue baseball cap, a blue football jersey possibly bearing the number 22, and blue pants. Poblette described the robber as 5’7” or 5’8” in height, and thought the football jersey had the number 2 or 22 on it. Officer Ververa broadcast the description to other officers, and 45 to 50 minutes later, police arrested Yanez at a house a few blocks away. Upon his arrest, Yanez was found in possession of Davalos’s key chain and eight live bullets. He was wearing a blue football jersey bearing the number 2 and dark blue pants. The same night, police found a small black .380 Baretta semiautomatic handgun within blocks of the house where Yanez was arrested.
Five days after Yanez was arrested, Davalos and Poblette separately identified Yanez as the robber from a six-pack photo lineup prepared by police. Both witnesses later identified Yanez at trial as the robber. When Officer Ververa showed Davalos the gun recovered by police on the night of the robbery, Davalos “identified it as the weapon that was used to commit the robbery.” When Davalos was later shown the gun at trial, he testified it was the gun used on him during the robbery and shown to him by police on the night of the robbery.
Yanez did not testify in his defense. A police property report prepared by Officer Ververa was introduced into evidence by the defense.
The jury convicted Yanez as charged and found true the firearm-use enhancement allegation. In bifurcated proceedings, Yanez admitted the prior prison term enhancement allegation.
The trial court imposed an aggregate state prison sentence of 13 years, consisting of the three-year middle term for second degree robbery, plus 10 years for the firearm-use enhancement. The court imposed and stayed a one-year term for the prior prison term enhancement.
DISCUSSION
Claimed Evidentiary Errors
Yanez asserts the trial court improperly admitted: (1) Officer Ververa’s testimony about finding Davalos’s key chain in Yanez’s possession; (2) the gun, itself; and (3) a photograph of another officer pointing to the location where the gun used in the robbery was found. These claims are forfeited; and, had they been preserved for appeal, are without merit.
1. Officer Ververa’s Testimony Concerning Davalos’s Key Chain
Officer Ververa testified on direct examination he was in charge of the robbery investigation; and he was present during the postarrest search of Yanez by another officer.
[Prosecutor]: “You were present during the search. And did you see what was recovered from [Yanez] that night?”
[Officer Ververa]: “The officer handed me an inventory.”
[Defense counsel]: “Objection. Nonresponsive, your Honor.”
[The Court]: “Sustained. Did you see what was recovered from [Yanez] that night, sir?”
[Officer Ververa]: “Yes.”
[Prosecutor]: “Okay. What did you see was recovered from [Yanez]?”
[Officer Ververa]: “What was recovered from [Yanez] was eight live bullets of ammunition and a set of – a key chain.”
Yanez maintains Ververa’s testimony was inadmissible, arguing “it is evident that [Officer] Ververa relied on the hearsay statement, the inventory, to reach the conclusion that the key chain was removed from [Yanez’s] pocket.” Yanez further argues because the officer who conducted the search failed to testify, he was denied his Sixth Amendment right to confrontation within the meaning of Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford).
Yanez’s state law and confrontation clause claims are forfeited because he did not object on those grounds at trial. (Evid. Code, § 353, subd. (a); People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Partida (2005) 37 Cal.4th 428, 435.) In any event, Yanez’s confrontation rights were not implicated by Officer Ververa’s testimony; Crawford does not apply. In Crawford, the United States Supreme Court held that with respect to hearsay statements of a witness, “[w]here testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. . . .” (Id. at p. 68.)
Here, however, there were no hearsay statements of a witness that the prosecution sought to introduce; all that was presented was Officer Ververa’s first-hand account of his observation that Davalos’ key chain was found in Yanez’s possession. (See Evid. Code, § 1200.)
2. The Gun
Yanez does not make a state law claim the gun was improperly admitted into evidence. Instead he argues its admission denied him a fair trial. After noting there was evidence the gun was identified as the weapon used in the robbery, Yanez then asserts his due process rights were violated because there was no fingerprint evidence or other proof he had ever possessed the gun. Assuming without deciding his due process claim has been preserved (see People v. Prince (2007) 40 Cal.4th 1179, 1229; People v. Partida, supra, 37 Cal.4th at pp. 433-434), it is without merit. Because the gun was properly admitted into evidence, its admission did not violate Yanez’s constitutional rights. (People v. Kraft (2000) 23 Cal.4th 978, 1035; People v. Cudjo (1993) 6 Cal.4th 585, 611.) Furthermore, Yanez’s claim goes to the weight, not to the admissibility of the evidence. It was up to the defense to expose any perceived weaknesses in the People’s case through vigorous cross-examination, which defense counsel conducted here before arguing to the jury the evidence did not reasonably connect Yanez to the gun.
3. The Photograph and Testimony Concerning the Recovery of the Gun
Officer Ververa testified he was present when the gun was found at the time of Yanez’s arrest. During this testimony, the prosecutor showed Officer Ververa two photographs, People’s exhibit 7-A and 7-B which were admitted into evidence without objection. The two exhibits have been transmitted to this court, and we have examined them. Exhibit 7-A shows a black gun placed on top of some bricks; exhibit 7-B shows a uniformed officer extending his right arm and pointing his index finger towards a stack of bricks next to a wall in what appears to be the side yard of a house.
After being shown these photographs, Officer Ververa identified the uniformed officer in exhibit 7-B as Officer Ringrose, photographed as he was “pointing to the location where he recovered the semi-automatic [sic] handgun.” Officer Ververa further testified exhibit 7-A is a photograph “of the handgun before it was actually recovered or moved.” Officer Ververa was then shown the gun itself. He testified it was the gun depicted in exhibits 7-A and 7-B, the same gun that was recovered in the robbery investigation.
Yanez contends the admission into evidence of exhibit 7-B violates his confrontation rights as interpreted by Crawford because he did not have the opportunity to cross-examine Officer Ringrose. Yanez has forfeited his contention by not registering an appropriate objection at trial (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1028, fn. 19; People v. Partida, supra, 37 Cal.4th at p. 435). In any event, Officer Ververa’s testimony laid a proper foundation for admitting exhibit 7-B into evidence. Here too, Yanez’s reliance on Crawford is misplaced; and he mischaracterizes Officer Ververa’s testimony as hearsay when it was based on the officer’s first-hand knowledge. The record reflects Officer Ververa was present during the search, witnessed Officer Ringrose’s discovery of the gun in exhibit 7-B, personally booked the gun into evidence and subsequently showed it to Davalos who identified it as the gun used in the robbery. Exhibit 7-B and the challenged testimony were properly admitted into evidence.
Because we conclude the admission of the challenged evidence was neither a state law nor federal constitutional violation, we need not address Yanez’s argument the remaining evidence was insufficient to support the conviction.
Claimed Ineffective Assistance of Counsel
To prevail on this claim, Yanez must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability, but for counsel’s deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland); People v. Williams (1997) 16 Cal.4th 153, 215.)
“‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action “‘might be considered sound trial strategy’” under the circumstances. (Strickland, supra, 466 U.S. at pp. 689, 694; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [“Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions”]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘If the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention [that counsel provided ineffective assistance] must be rejected’”].)
Yanez claims his counsel was in effective in failing: to file a motion to suppress evidence, to secure an expert on the reliability of eyewitness identification; to request a live line-up for eyewitnesses; to move for the exclusion of the photographic lineup as unduly prejudicial; to file trial and sentencing briefs/memoranda; to present an affirmative defense; and to make various trial objections, including those we have concluded were either unfounded or which resulted in harmless error. All of these alleged failures involved defense counsel’s tactical decisions. Because the record does not demonstrate the absence of any rational tactical purpose for at least one omission, specifically the failure to file a motion to suppress evidence, Yanez’s claim must be denied on direct appeal. (People v. Lucas, supra, 12 Cal.4th at p. 442.)
Proof of Yanez’s claimed ineffective assistance requires a showing beyond the scope of the record on appeal. For this reason, the California Supreme Court has held that a claim of ineffective assistance of counsel based on counsel’s alleged failure to act in a particular manner should be raised in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [a claim of ineffective assistance of counsel relating to why counsel acted or failed to act in a specific manner “is more appropriately decided in a habeas corpus proceeding”]; see also People v. Jones (2003) 29 Cal.4th 1229, 1263 [issues requiring review of matters outside the record are better raised on habeas corpus rather than on direct appeal].) As Yanez has neither established defense counsel’s performance fell below an objective standard of reasonableness nor demonstrated a reasonable probability that the result would have been different had the instruction been requested and given, we decline to reverse his conviction on this ground on direct appeal.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.