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People v. Blanco

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 31, 2012
B224707 (Cal. Ct. App. Jan. 31, 2012)

Opinion

B224707

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. OSCAR BLANCO, Defendant and Appellant.

Nathan Aguilar for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Super. Ct. No. TA103517)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary E. Daigh, Judge. Affirmed.

Nathan Aguilar for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Oscar Blanco challenges his conviction for murder, contending that his trial counsel rendered ineffective assistance and that the jury was misinstructed. We reject these contentions and affirm.

RELEVANT PROCEDURAL HISTORY

On January 21, 2009, an information was filed against appellant, charging him with the murder of Justino Montez-Torres (Pen. Code, § 187, subd. (a)). The information alleged that appellant had personally used, and intentionally discharged, a firearm, causing great bodily injury and death (§12022.53, subds. (b), (c), (d)). It further alleged that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Appellant pleaded not guilty and denied the special allegations.

All further statutory references are to the Penal Code.

On April 3, 2009, a jury found appellant guilty of willful, deliberate, and premeditated murder and found the gun use allegations to be true. It found the gang allegation not true. The trial court sentenced appellant to a term of imprisonment of 50 years to life.

FACTS

A. Prosecution Evidence

At approximately 7:30 a.m. on January 13, 2008, in response to a radio call, Los Angeles Police Department (LAPD) officers arrived at Figueroa Street and 119th Street, where they found 60-year old Justino Montez-Torres lying on the ground, with several gunshot wounds. Shortly after 9:25 a.m., investigating officers detained appellant in a nearby alley. Appellant wore a black sweatshirt, a white T-shirt, and black pants. Upon being detained, appellant said to some bystanders, "Tell my mother I love her." While appellant was detained at the location, the officers conducted field showups in which appellant was viewed by Fernando Gracida and Kristina Bolanos. Investigating officers later found a blue jacket in appellant's apartment, but never located the gun used in the shooting. Montez-Torres died of a gunshot wound in his chest.

The prosecution's key witnesses regarding the shooting were Gracida and Bolanos. Gracida testified that at approximately 7:20 a.m., he was driving on Figueroa Street near 118th Street in the lane closest to the sidewalk, when he saw appellant pointing a gun at another man. As Gracida drove past, he had a direct view of appellant's face for approximately five seconds. According to Gracida, appellant looked very angry. Gracida further testified that appellant wore a blue and white sports jacket and a white T-shirt. Gracida turned on 120th Street, stopped and made a 911 phone call. During the call, Gracida stated that he had seen a "guy with a gun" on 119th Street and Figueroa Street. Gracida described the man as Hispanic with a blue jacket and black or blue pants.

Later that day, police officers drove Gracida to a location near where he had seen the man with the gun. The officers told Gracida, "We're about to show you someone. He may or may not be the person you saw earlier." Upon arriving at the location, Gracida identified appellant as the man with the gun. Gracida also so identified appellant at two later court hearings and at trial.

Bolanos testified that on January 13, 2008, she lived in an apartment building located at Figueroa Street and 119th Street. At approximately 7:20 a.m., she looked down from her second-story apartment balcony and saw two men struggling in front of her building. According to Bolanos, a young man appeared to be trying to push an older man to the ground. When Bolanos looked away, the sound of shots recalled her attention to the street, where she saw the older man on the ground and the young man running away. The older man was motionless. According to Bolanos, she had only a side view of the fleeing man's face.

Later that morning, after Bolanos made a 911 call, police officers drove her to a spot located in the direction the fleeing man had run. The officers told her the person they intended to show her might or might not be the man she had seen earlier. When the officers presented appellant to Bolanos and asked whether he was the fleeing man, she answered, "Yeah, . . . he had his face features," but noted that appellant was not wearing a blue jacket. Bolanos also told the officers she had seen appellant in the past. During a subsequent interview by LAPD detectives, Bolanos stated that she thought the fleeing man was probably in a gang, and indicated her reluctance to get "mixed up" in the incident due to a concern for her daughters' safety. Recordings of Bolanos's field showup and interview were admitted into evidence.

At trial, Bolanos stated she could not identify appellant as the fleeing man. Regarding her prior statements during the field showup, she testified: "I remember saying that it looks to be him. The clothes [were] similar; everything [was] similar, but I never said it was him. I never said it was his face. I never saw a face." Bolanos acknowledged that she had failed to testify at a prior hearing despite a subpoena for her appearance, citing her concern that the incident appeared to be gang-related; in addition, at other proceedings she had testified that she was unable to identify appellant as the fleeing man.

LAPD officer Samuel Marullo, a gang expert, opined that appellant was a member of the South Los criminal street gang with the moniker "Hydro." According to Marullo, the South Los gang has 253 documented members who use common signs and symbols and engage in drug sales, robberies, and burglaries. The gang claims an area centered on Figueroa and 118th Street. When presented with a hypothetical whose facts mirrored the evidence presented in the instant case, Marullo opined that the murder was committed for the benefit of the South Los gang.

B. Defense Evidence

Salvador Donato testified that on January 12, 2008, appellant spent the day drinking alcohol in Donato's apartment. Appellant slept overnight in the apartment, which he and Donato left at 7:48 a.m. Appellant and Donato then talked outside the apartment for several minutes. Donato denied being a South Los gang member.

Donato's wife, Leticia Lemus, testified that appellant spent the night of January 12, 2008, in the apartment she shared with her husband. The next morning, Lemus awoke at approximately 7:30 a.m. and saw appellant talking with Donato outside the apartment.

Derrell Griffith, an investigator employed by the Los Angeles County Public Defender's Office, testified that he photographed the area surrounding the murder scene, including Bolanos's apartment building, and had measured the distance between Bolanos's apartment balcony and the location of Montez-Torres's body. He estimated the distance to be 334 feet.

C. Rebuttal

LAPD Officer Ricardo Feria testified that in 2007, Salvador Donato told Feria that he was a member of the South Los gang with the moniker, "Clumsy." In addition, LAPD Detective Kerri Potter testified that on January 13, 2008, the weather was clear and sunny.

DISCUSSION

Appellant contends (1) he received ineffective assistance of counsel, and (2) the trial court misinstructed the jury.

A. Ineffective Assistance of Counsel

Appellant contends his trial counsel rendered ineffective assistance by failing to (1) challenge the admission of Gracida's and Bolanos's field identifications, (2) prepare adequately for trial, and (3) file a motion for a new trial. For the reasons explained below, we reject these contentions.

1. Governing Principles

"In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citations.] Prejudice is shown when there is a 'reasonable probability 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.' [Citations.]" (People v. Jennings (1991) 53 Cal.3d 334, 357.)

2. Field Identifications

Appellant contends his counsel was ineffective in failing to seek the suppression of the field identifications on two grounds, namely, that appellant was denied his right to counsel during the field showups, and that the showups were unduly suggestive. We disagree. Defense counsel does not render ineffective assistance by declining to raise meritless objections. (People v. Price (1991) 1 Cal.4th 324, 387.) As explained below, the record shows no meritorious basis for a motion to suppress the field identifications.

To begin, the absence of defense counsel during the field showups does not support the suppression of the identifications. The record establishes that at the time of the showups, police officers had detained appellant because he matched a description of the shooter, but they had not arrested him. Appellant was thus not entitled to counsel under the United States Constitution, which affords defendants the right to counsel during identification procedures only after the initiation of judicial criminal proceedings. (People v. Cook (2007) 40 Cal.4th 1334, 1352-1353; People v. Johnson (1992) 3 Cal.4th 1183, 1223.) Furthermore, although suspects are entitled to counsel at preindictment identification lineups under the California Constitution, evidence obtained in contravention of this right is admissible at trial, as the passage of Proposition 8 in June 1982 abrogated the rule requiring the exclusion of such evidence. (People v. Cook, supra, 40 Cal.4th at p. 1353.)

Nor does the record establish that the field showups were unduly suggestive. Generally, defendants have the burden of showing an unreliable identification procedure. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) Our Supreme Court has explained: "'The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; 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 criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.' [Citation.]" (Ibid.) A due process challenge to an identification procedure thus fails upon a determination that the procedure was not unduly suggestive. (Ibid.) Under these principles, "'[t]he "single person showup" is not inherently unfair.'" (Id. at p. 413, quoting People v. Floyd (1970) 1 Cal.3d 694, 714, overruled on another ground in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 3b.)

Here, shortly after the shooting, LAPD detectives drove Gracida and Bolanos separately to an alley where appellant had been detained and handcuffed. During the drives, the detectives told each witness that the person he or she would see "might or might not" be the man with the gun. Although Gracida and Bolanos testified that they thought that the police had probably detained the man with the gun, they did not suggest that the detectives encouraged them in any manner to make a positive identification. Upon arriving in the alley, Gracida and Bolanos each remained in a police car while officers removed appellant from another police vehicle.

The procedure employed here was not unduly suggestive. In In re Richard W. (1979) 91 Cal.App.3d 960, 965-967, a witness saw the two defendants leaving a motel room they had burglarized. Shortly afterward, police officers conducted a field showup during which the witness viewed the defendants, who were handcuffed, seated in a police car, and surrounded by police officers. (Id. at pp. 969-970.) In concluding the procedure used in the showup was not improperly suggestive, the appellate court stated, "the law favors field identification measures when in close proximity in time and place to the scene of the crime," as the potential unfairness in such measures is ordinarily "'offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later.'" (Id. at p. 970, quoting People v. Anthony (1970) 7 Cal.App.3d 751, 764-765.) Numerous courts have approved similar field showup procedures. (E.g., People v. Craig (1978) 86 Cal.App.3d 905, 914 [victim was shown defendants while they were in police car surrounded by officers]; People v. Anthony, supra, 7 Cal.App.3d at p. 764 [witness was shown defendant, who was handcuffed and seated in police car]; People v. Colgain (1969) 276 Cal.App.2d 118, 122 [victim was shown defendant, who was handcuffed and standing next to police car].) Appellant has thus failed to show the field identifications were the product of impermissibly suggestive procedures. In sum, counsel did not act improperly in failing to seek the suppression of the field identifications, as the record discloses no meritorious basis for their suppression.

3. Trial Preparation

Appellant contends his counsel's preparation for trial was inadequate because counsel did not obtain various items of evidence potentially favorable to his defense. Appellant maintains that counsel failed to: obtain a statistical study regarding the individuals who resemble appellant in the neighborhood of the crime; request another identification procedure, for example, a multi-person line up; locate and present other witnesses to the crime; present evidence that a medallion found near Monez-Torres's body displayed only Montez-Torres's DNA; and arrange for gunpowder residue testing on appellant's person and belongings. In addition, appellant asserts that counsel rendered ineffective assistance by failing to withdraw from the case, thereby preventing the appointment of another attorney who might have pursued these items of evidence more vigorously. As explained below, appellant has shown no inadequacy in counsel's preparation for trial.

Appellant also suggests that counsel's presentation of his defense was inadequate because counsel did not attempt to exclude evidence of Gracida's and Bolanos's field identifications. This contention fails for the reasons we have explained above (see pt.A.2., ante).

Generally, defense counsel is accorded considerable latitude in the selection of a defense strategy (People v. Cunningham (2001) 25 Cal.4th 926, 1004-1007), provided that it is informed by adequate investigation and preparation (In re Marquez (1992) 1 Cal.4th 584, 602). "To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .' [Citation.] . . . ." (People v. Bolin (1998) 18 Cal.4th 297, 333, quoting People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)

Appellant's contentions fail for want of a demonstration that more vigorous trial preparation would have produced additional exculpatory or impeachment evidence. (People v. Bolin, supra, 18 Cal.4th at p. 333.) Nothing before us shows that counsel failed to adequately investigate or otherwise neglected evidence favorable to appellant's defense. Although the record discloses counsel was aware that some of the proposed items of evidence may have existed, counsel was never asked to explain why she did not present them at trial. Nor does the record establish that "'there simply could be no satisfactory explanation'" for her failure to present them (People v. Bolin, supra, 18 Cal.4th at p. 333), as appellant has not shown that the proposed items, upon adequate investigation, amounted to cognizable exculpatory or impeachment evidence. As our Supreme Court has explained, "Such claims must be supported by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for exonerating the accused. [Citations.] We cannot evaluate alleged deficiencies in counsel's representation solely on [a] defendant's unsubstantiated speculation." (People v. Cox (1991) 53 Cal.3d 618, 662, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Nothing before us shows that investigation of the proposed items would have developed evidence materially favorable to appellant.

4. New Trial Motion

Appellant contends his counsel rendered ineffective assistance in failing to seek a new trial on the ground that she did not present material evidence favorable to appellant during the trial. As explained below, this contention fails for want of a demonstration that any such evidence existed.

Appellant does not clarify the purported basis for the new trial motion, which appears to be either the discovery of new evidence (§ 1181, subd. (8)) or incompetence of counsel (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 110, pp. 141-142).
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Appellant maintains that his counsel failed to present several items of exculpatory or impeachment evidence during the trial. He argues there was another witness to the crime, as the recording of Bolanos's field identification disclosed that when Bolanos saw the two men struggling, she noticed "another guy across the street" watching the incident. Furthermore, because a K-9 unit was apparently used to track the suspect, appellant argues that a police dog handler might have testified that appellant's scent was not found at the scene of the shooting. Appellant also asserts that Bolanos's testimony regarding her fears of gang retaliation suggested the existence of evidence that similar fears may have influenced appellant's conduct. In addition, appellant contends that because Bolanos and the police gang expert testified that many men who live near the scene of shooting ordinarily dress similarly to appellant, "[a]n expedited investigation may have revealed evidence favorable to [his] defense." Finally, appellant argues that counsel could have requested that the jury be permitted to visit the scene of the murder in order to reinforce the defense investigator's testimony regarding Bolanos's view of the murder.

For the reasons explained above (see pts. A.2. & A.3., ante), these contentions fail to establish ineffective assistance of counsel. Appellant has demonstrated no meritorious basis for a new trial motion, as his contentions regarding the evidence not presented at trial are unsupported "by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for exonerating the accused" (People v. Cox, supra, 53 Cal.3d at p. 662). Instead, the contentions rely exclusively on appellant's speculation regarding the existence of the evidence and its probative value. In sum, appellant's claim of ineffective assistance of counsel fails on the record before us.

B. Instructional Error

Appellant contends the trial court committed reversible error in instructing the jury with CALCRIM No. 3550. The written version of CALCRIM No. 3550 provided to the jury stated in pertinent part: "Your verdict on each count and any special findings must be unanimous. This means that, to return a verdict, all of you must agree to it. [¶] . . . [¶] . . . As soon as all jurors have agreed on a verdict, the foreperson must date and sign the appropriate verdict forms and notify the bailiff. If you are able to reach a unanimous decision on only one or only some of the []charges . . .[], fill in []those[] verdict forms only, and notify the bailiff. Return any unsigned verdict form." (Italics added.) However, in instructing the jury orally, the trial court did not fully recite the portion of the instruction italicized above. Instead, the trial court instructed the jury as follows: "Your verdict and special findings must be unanimous. That means to return a verdict, all of you must agree to it. [¶] . . . [¶] . . . As soon as the jurors agree on a verdict, have the foreperson sign and date it and notify the bailiff. Return any unsigned verdict forms."

Appellant contends the trial court's oral paraphrase of the italicized portion of CALCRIM No. 3550 was prejudicial because it "eliminat[ed] the possibility of a hung jury." He argues that "[i]n omitting words such as 'if you are able to reach a unanimous decision' and 'fill in those verdict forms only,' the trial court created a perception in the jury's mind that a unanimous verdict was [its] only course of conduct." We disagree. Generally, "[i]n reviewing a challenge to the instructions given to the jury, we consider the entire charge, not parts of an instruction or a particular instruction. [Citation.] Defendant must show a reasonable likelihood that the jury misunderstood the challenged instructions. [Citation]." (People v. Zepeda (2008) 167 Cal.App.4th 25, 31.) Furthermore, "[t]he written version of jury instructions governs any conflict with [the] oral instructions." (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113.) Thus, when the trial court orally misstates an instruction when reading it to the jury, the jury is presumed to follow the written instruction it receives upon the inception of its deliberations. (People v. Osband (1996) 13 Cal.4th 622, 686-688; People v. Rodriguez, supra, 77 Cal.App.4th at pp. 1112-1113.)

In view of these principles, appellant's contention fails. The written version of CALCRIM No. 3550 properly informed the jury that it need not reach verdicts on the charge of murder or the special allegations. Furthermore, the divergence between the oral and written instructions was not likely to have confused the jury. In orally instructing the jury with CALCRIM No. 3550, the trial court stated: "You should try to agree on a verdict if you can." (Italics added.) In addition, as noted above, the trial court orally instructed the jury that the foreperson should sign and complete a verdict form when the jury reached a unanimous verdict, and that unsigned verdict forms should be returned. Accordingly, the oral instructions, viewed collectively, informed the jury that the verdict forms should be completed only if it could reach unanimous agreement. In sum, appellant has failed to show reversible instructional error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.


Summaries of

People v. Blanco

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 31, 2012
B224707 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Blanco

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. OSCAR BLANCO, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 31, 2012

Citations

B224707 (Cal. Ct. App. Jan. 31, 2012)