People v. Brown

Full title: THE PEOPLE, Plaintiff and Appellant, v. NAPOLEON BROWN, Defendant and…

Court: Court of Appeal of California

Date published: Jul 21, 2009

No. A113670 (Cal. Ct. App. Jul. 21, 2009)

Opinion

A113670 A113671 A123374

7-21-2009

THE PEOPLE, Plaintiff and Appellant, v. NAPOLEON BROWN, Defendant and Appellant. In re NAPOLEON BROWN on Habeas Corpus.

Not to be Published in Official Reports

Pollak

Defendant Napoleon Brown was convicted by a jury of four counts of robbery, carjacking and, based on a bizarre series of events during flight, murder. A new trial was granted with respect to the murder conviction based on the trial courts finding that defendant received ineffective assistance of counsel. On appeal, defendant asserts numerous grounds for reversal of the carjacking and robbery convictions. Defendant has also filed a petition for writ of habeas corpus asserting additional grounds for reversal, which has been consolidated with this appeal. Finally, the People have cross-appealed, asserting that the court erred in granting a new trial on the murder charge. Having considered all of the arguments, we affirm the judgment and the order granting the motion for new trial and deny defendants writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

On October 25, 2001, defendant and codefendant Sala Thorn were charged with one count of murder (Pen. Code, § 187),¹ four counts of robbery (§ 212.5, subd. (c)), and one count of carjacking (§ 215). The information alleged that the murder occurred in the course of the robberies and carjacking (§ 190.2, subd. (a)(17)(A) & (L)), that defendant personally used a firearm during the commission of the robberies and carjacking (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), and that a principal was armed with a firearm during the commission of the robberies and carjacking (§ 12022, subd. (a)(1)). Finally, the information alleged that defendant had suffered a prior robbery conviction that constituted a serious felony enhancement and a strike (§§ 667, subds. (a), (d)-(e), 1170.12, subds. (b)-(c)).

1 All statutory references are to the Penal Code unless otherwise indicated.

The following evidence was presented at trial:

The Prosecutions Case

On June 19, 2000, between 12:00 a.m. and 12:30 a.m., two African-American men entered the Johnny Rockets restaurant on Chestnut Street in San Francisco as three employees were closing the store and preparing to leave. One of the men, later identified by two of the employees as defendant, was carrying a chrome semi-automatic handgun. The other wore a red bandana over his face. The men forced the employees to the basement and made them lie face-down on the floor. The man with the bandana took money from each of the employees while defendant escorted one of the employees to the safe and demanded that he open it. About this time, a fourth employee returned to the restaurant. The man with the bandana forced the employee to join the others in the basement and removed money from his pockets. Defendant removed at least $7,200 from the safe before leaving the restaurant. Once the men left the premises, the employees called the police and reported the robbery.

Shortly after 12:30 a.m., Officer Gary Watts noticed two African-American men walking briskly towards him on Chestnut Street. One was carrying what appeared to be a red bank deposit bag. About 30 feet from him, they turned a corner and ran to a parked car in the next block that "appeared to be waiting . . . with the taillights on." The men got into the passenger side of the car, which immediately sped off. Watts ran to his unmarked police car, returned to the area in his car, and saw a vehicle two blocks ahead—the only vehicle in sight. As he pursued the car, he heard a radio dispatch concerning the robbery at the restaurant. He relayed what he had seen and reported that he was in pursuit of a car with the license plate number 4JLK910, later determined to be a Ford Escort. As the car approached the Golden Gate Bridge, Watts pulled next to it. He saw an African-American man in the passenger seat and an African-American woman driving the car. He could not see into the back seat because of the heavily tinted rear windows. Watts sped past the Ford and called for the Highway Patrol to stop the car. Watts waited in the bridge parking lot for the Ford to pass him and followed it on to the bridge. He did not activate his lights or attempt to stop the car.

Suddenly, the Ford pulled into the buffer lane in the center of the bridge and stopped. Watts stopped his car about 75 feet behind the Ford. The drivers side door of the Ford opened and the female driver fell out, as if she had been pushed or kicked from the car. She tried to break the fall with her hands and rolled into the oncoming lane of southbound traffic, where she lay face-down, crying hysterically. As Watts got out of his car, a man exited the passenger side of the Ford. Watts yelled for him to "get down on the ground" but he ignored the command, entered the drivers seat of the Ford and drove off. Watts had "no doubt" that the man he saw was codefendant Thorn. He could not see into the car and did not know if defendant was in the back seat.

As the car drove away, Watts saw headlights approaching in the southbound direction and yelled for the female to get up. The woman, later identified as Lenties White, did not rise from the pavement before being struck by the oncoming car, which did not break or swerve before hitting her. Using videotape from the bridge surveillance cameras, Watts estimated that approximately 19 to 24 seconds elapsed from the time he pulled up behind the Ford until White was hit by the oncoming car.

At 12:57 a.m., Watts broadcast that the woman had been hit and that the robbery suspects were headed towards Marin. Minutes later three additional officers arrived on the bridge. Officers Michele Aschero and Keith Pasquinzo approached White, who was lying gravely injured on the road. Aschero asked the woman her name and date of birth and the woman identified herself as Lenties White with a birth date of May 17, 1975. When Aschero asked her what had happened, White responded that "S.B." "threw me out of the car." The officers asked her to repeat the identity, and both officers clearly heard her say "S.B." White also told the officers that S.B. lived at the intersection of McAllister and Fillmore and she asked them to contact her mother Sandra McNeil. The paramedic who responded to the bridge described Whites level of consciousness and awareness as "remarkable," noting in his report that despite her traumatic injury, she "remain[ed] oriented times two throughout transport." White died at the hospital later that morning from blunt force trauma and the resulting blood loss. She had a significant amount of cocaine in her system at the time of her death.

Meanwhile, at approximately 1:09 a.m., Highway Patrol Officer Paul Perez spotted the robbery suspects car traveling northbound on Highway 101 past Marin City. He activated his emergency lights and with four additional patrol cars followed the car on a high speed chase. The car was eventually stopped and the sole occupant, Thorn, was arrested. Inside the Ford, officers located two Johnny Rockets security cards. Thorn had $46 dollars on his person, but no money was found in the car.

At trial, Samantha Jefferson claimed to remember very little about the morning of June 20. Her interviews with the police were admitted as prior inconsistent statements. In those interviews she told police that defendant appeared at her home at approximately 5:00 a.m. that morning asking about White. He indicated that he thought something might have happened to her and he told Jefferson to turn on the news because he thought White was dead. They watched news coverage about the accident on the bridge involving a woman whose identity had not yet been released. Defendant told her that White had been taken hostage while trying to buy cocaine. Jefferson told him she did not believe him, but defendant insisted he had nothing to do with Whites death. Jefferson also told the police that defendant used the nickname "S.B."

Kermit Allen was the driver of the car that hit White on the bridge. When Allen voluntarily surrendered at the toll plaza, officers determined that he was under the influence of alcohol and arrested him. Allens blood sample at 3:15 a.m. had an alcohol content of .10 percent. Highway Patrol Officer McClellen testified that based on his reenactment of the accident, he believed even a sober driver would have struck White.

Police recovered a red bandana in the lobby area of the Johnny Rockets restaurant. DNA testing matched defendants DNA to samples taken from the bandana.

On June 20, 2000, Police Inspectors Anthony Camilleri and Antonio Casillas interviewed defendants sister, London Breed. She told them that defendant was known as "Sonny" or "Sonny Boy." She thought he might also use the name "S.B." While the interview was in progress, defendant called Breed and spoke briefly with Camilleri. He told Camilleri that he used the nicknames "Sonny" and "S.B." and acknowledged that he had been with White the previous night until about 10:00 p.m. Camilleri urged defendant to come to the police station to make a statement and defendant agreed "to call [him] later to make an appointment." Breed called later that day, however, and told Camilleri that defendant would not be coming to the station.

Luette Harris, who was with defendant at the time of his arrest, also knew defendant to use the nickname "S.B." Defendant lived on Eddy Street near Webster, which is about three blocks from McAllister and Fillmore.

On August 6, 2000, defendant was arrested on a warrant. He tried to flee but was apprehended without incident.

The Defense Case

Dr. Steven Clark testified as an expert on eyewitness identification. He explained that memory tends to fade over time so that an early identification is the most reliable; approximately 20 to 25 percent of the time people make false identifications when viewing a photo or live line-up; and people are generally better at identifying suspects of their own racial or ethnic background than of other backgrounds. Dr. Scott Frasier opined that it is very difficult to identify a person over a distance of 75 feet.

Dr. Mark Stassberg, a neurologist, opined that based on Whites injuries, after the accident she would have been "less than reliable in her recollections and her ability to interact." Dr. Michael Slade opined that based on what he calculated to be a high level of cocaine in Whites system at the time of the accident, her ability to perceive, process information and communicate would have been affected. He also calculated Allens blood alcohol level at the time of the accident and opined that his level would have a negative effect on his driving, reaction time, perception and concentration.

Whites mother, Sandra McNeil, testified that she did not know Thorn but that she and her daughter had known defendant most of his life. They lived for years in the neighborhood of Fillmore and McAllister Streets. She and White knew him as "Sonny Boy" but neither referred to him as "S.B."

Defendants sister, London Breed, provided an alibi for defendant. When she arrived at her grandmothers house around midnight on June 18, 2000, defendant was asleep on the couch. She could not remember if he was still there when she left for work in the morning. She denied ever telling the police that defendant used the nickname "S.B."

Kenneth Chappel testified that he had spent all night with Thorn. About 12:45 a.m., they were in Marin City when a car drove up. The driver spoke to Thorn, got out of the car, and then Thorn got into the car and drove away.

Private Investigator Jackson Holland reenacted the suspects flight from the robbery as recounted by Watts. In the reenactment he could not see the suspects enter the car.

The jury convicted defendant on all counts and found true the special circumstance allegations. The jury found the firearm enhancements true on all counts except for the carjacking. In a bifurcated proceeding, the jury found true defendants prior serious felony conviction.²

2 Thorn was acquitted of the robbery, carjacking and murder count but convicted on an additional count of evading a police officer.

On November 18, 2005, defendant moved for a new trial. The motion was denied on January 20, 2006. On February 7, however, defendant filed a renewed motion for new trial and the court indicated that it was reconsidering its prior ruling. On February 27, 2006, the court granted the motion with respect to the murder conviction. Defendant was sentenced on the remaining counts to 44 years, 4 months in prison. Both the defendant and the People filed timely notices of appeal. Defendant has also filed a petition for habeas corpus that has been consolidated with the appeals.

DISCUSSION

I. Defendants Appeal

1. Batson/Wheeler Error

During jury selection, defendant made five motions under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson), challenging the prosecutors use of peremptory challenges against African-American prospective jurors. The trial court denied each motion and defendant now contends that the court erred in doing so.

"A prosecutors use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against `members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.] [¶] The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. `First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." " (People v. Avila (2006) 38 Cal.4th 491, 541, citing Johnson v. California (2005) 545 U.S. 162, 168.)

The trial court denied each of defendants motions on the ground that he had failed to establish a prima facie case. At the time of these rulings, our Supreme Court had ruled that the standard for determining whether a prima facie case has been established is whether the record reflects a "strong likelihood" that prospective juror challenges were based on improper discrimination or, stated differently, whether the record shows that "more likely than not the other partys peremptory challenges, if unexplained, were based on impermissible group bias." (People v. Johnson (2003) 30 Cal.4th 1302, 1318.) Subsequently the United States Supreme Court rejected this standard as too stringent, holding that a prima facie case is established if a reasonable inference of discrimination may be drawn from the record. (Johnson v. California, supra, 545 U.S. at p. 168.)

"[W]e apply a deferential standard of review to the trial courts denial of a defendants Wheeler/Batson motion, considering only whether the ruling is supported by substantial evidence." (People v. Salcido (2008) 44 Cal.4th 93, 136.) In Salcido, the court recognized that "[a]fter the high court concluded in Johnson that the state constitutional standard employed in Wheeler to determine whether a defendant has made a prima facie case of group discrimination was more rigorous than, and therefore violated, the federal constitutional standard enunciated in Batson [citations], we recognized that a different standard of appellate review is required in cases predating Johnson in which the trial court determined the defendant failed to make a prima facie case of group discrimination." (Id. at p. 137.) Contrary to defendants argument, application of the pre-Johnson standard does not require automatic reversal of the judgment. Rather, if the wrong standard is applied, or "when it is unclear exactly what standard the trial court has employed in deciding whether the defendant has made a prima facie case, we may not accord deference to the trial courts finding that no prima facie case has been made, but must be satisfied from our independent review of the record that the defendant has made an insufficient showing at the outset to permit an inference of discrimination." (Ibid.) In the present case, however, it is clear from the record that the trial court appreciated the split in authority between the state and federal courts, emphasizing that defendant had failed to make a prima facie showing under either standard. Accordingly, the trial courts finding is entitled to due deference and will be reviewed for substantial evidence.

"In deciding whether a prima facie case was stated, we consider the entire record before the trial court [citation], but certain types of evidence may be especially relevant: `[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, . . . the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the courts attention. " (People v. Bonilla (2007) 41 Cal.4th 313, 342.)

Defendant suggests that "a prima facie case is patently clear" based on the "numbers alone." Excluding hardships, 123 potential jurors and alternates were interviewed on voir dire. Of these, 12 were identified as African-American, six of whom were men.³ The prosecutor used six of his 37 peremptory challenges to excuse African-American jurors, four against African-American men and two against African-American women. With challenges remaining, two African-American women were seated as jurors, and two African-American women and one African-American man were chosen as alternates. Defendant argues that the number of African-American men struck by the prosecutor indicates a prima facie case of discrimination. We disagree.

3 Defendant suggests in a footnote that another man "appears" to have been African-American. The record does not support this assertion and no motion was made following the prosecutors challenge to this potential juror.

People v. Bell (2007) 40 Cal.4th 582 is instructive. In that case, our Supreme Court agreed with the trial court that the defense did not make a prima facie showing that two women were improperly challenged because they are African-American women. The court explained that "[w]hile the prosecutor did excuse two out of three members of this group, the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. `[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion. " (Id. at pp. 597-598, fn. omitted ) Moving beyond the raw numbers, the court considered additional factors, such as the fact that the prosecutor did not use " `a disproportionate number of his peremptories against the group [citation]; only two of the prosecutors 16 peremptory challenges were exercised against African-American women" (id. at p. 598); defendant was not an African-American woman; and defendant did not argue that the challenged jurors "shared only the characteristic of being African-American women and were otherwise `as heterogeneous as the community as a whole " or that "the prosecutor engaged these prospective jurors in particularly `desultory questioning on voir dire" (ibid.). Finally, the court noted that "the prosecutor did not exercise peremptory challenges against most or all members of defendants parallel group, African-American men; three of them served on the jury." (Id. at p. 599.)

Although the sample size is slightly larger in this case and the defendant is a member of the excluded group, the record nonetheless supports the trial courts finding that there was no prima facie showing. As the trial court noted, the prosecutor engaged the potential jurors in appropriate voir dire. The answers given by the three African-American men whose excusals were challenged by defendant expressed opinions regarding police officers, cross-racial identification and drug use that distinguished them from the group as a whole. The court noted that the first African-America man excused "affirmatively bought into the concept of cross-racial identification difficulties." The second had been arrested on suspicion of committing a robbery and, although he was released shortly after a line-up, he believed he had been treated unfairly. No motion was made following the third mans removal and the fourth acknowledged a history of drug use and had a relative that was recently killed by a drunk driver. The court noted its concerns regarding the final man in connection with the potential issues in the case involving drug use and the impact of drunk driving on causation. Moreover, at the conclusion of jury selection, with challenges remaining, two African-American women were seated as jurors, and one African-American man and two African-American woman were seated as alternates.

Although finding that no prima facie showing had been made, the court did permit the prosecutor to state his reasons for the challenges. These explanations were all race-neutral and consistent with the courts reasons for deeming there to be no basis for inferring improper discrimination.⁴ As the California Supreme Court pointed out in Bonilla, "even when the trial court may ultimately conclude no prima facie case has been made out," these explanations "may assist the trial court in evaluating the challenge and will certainly assist reviewing courts in fairly assessing whether any constitutional violation has been established." (People v. Bonilla, supra, 41 Cal.4th at p. 343, fn. 13.) Here, the trial court found no reason to question the prosecutors explanations, nor do we. Thus, we find no reason to disturb the trial courts determination that no prima facie case of discrimination was made out.⁵

4 At oral argument, defendant stressed his contention that the prosecutor gave facially discriminatory explanations involving one African-American mans religion and anothers disability. The prosecutor indicated that the first African-American man was excused because, in addition to his concerns about cross-racial identification, he wore a cross and appeared to be devoutly religious. The final African-American man was excused because, in addition to having a history of drug use, he had AIDS and the prosecutor was concerned with his ability to pay attention to the proceedings. These explanations do not necessarily suggest that the challenges to these two prospective jurors were based on impermissible grounds of discrimination. The prosecutor did not indicate an unwillingness to accept any person of a particular religion or suffering from AIDS, but a concern for how the one individuals strong beliefs would affect his evaluation of the evidence and how the others disease would affect his ability to concentrate on the proceedings. Moreover, the potential jurors religion or disability was not the sole reason for the exercise of the peremptory challenges, and it does not appear that they were even substantial factors in the prosecutors exercise of the challenges. (See Batson, supra, 476 U.S. at p. 89 [the Equal Protection Clause forbids the challenging of potential jurors solely on account of their race]; Howard v. Senkowski (2d Cir. 1993) 986 F.2d 24, 30 [Batson challenges may be brought by defendants who can show that racial discrimination was a substantial factor motivating the prosecutors peremptory challenges].) Moreover, the prosecutors additional explanations do not compel the conclusion, as defendant suggests, that the other legitimate explanations given by the prosecutor for excusing these potential jurors were a pretext for racial discrimination.

5 In light of our conclusion that substantial evidence supports the trial courts finding that defendant did not meet his burden of establishing a prima facie case, we decline defendants invitation to engage in a detailed comparative juror analysis. (People v. Howard (2008) 42 Cal.4th 1000, 1020 ["Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutors proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecutions actual proffered rationales, and we thus decline to engage in a comparative analysis here"].)

2. Fifth Amendment Right to Remain Silent

At the start of the trial the prosecutor indicated he intended to argue as evidence of defendants guilt that prior to his arrest, defendant agreed to meet with the police to make a statement but never did so. Defendant objected to the proposed comments on the ground that any comment by the prosecutor on his decision not to speak to the police would violate due process and his Fifth Amendment right to remain silent. His attorney explained that defendant decided not to make a statement to the police after consulting with his attorney and that this information was relayed to the police the day after the scheduled interview. The trial court overruled the objection, finding that defendant was not in custody at the time and that there was insufficient evidence that defendants decision not to make a statement was the assertion of any constitutional right.

Consistent with the pretrial ruling, the prosecutor mentioned in his opening statement that defendants failure to make a statement to the police was evidence of his guilt. Inspector Camilleri testified he told defendant that he needed to speak with him in person and that defendant agreed to call him later that day to make an appointment. Breed called later that day, however, and said that defendant would not be coming to the station. On cross-examination, defendants attorney elicited testimony from Camilleri confirming that he had spoken with defendants attorney the next day and that counsel indicated that he needed to speak with defendant before deciding whether defendant would make a statement to the police. Breed confirmed that even though she agreed to bring defendant to the police station to make a statement, she did not do so and instead they "went to get an attorney." In closing argument, the prosecutor again relied on defendants failure to make a statement by arguing that Breed "was going to help [defendant] . . . come in, perhaps, and turn himself in or see the cops that evening, because the cops, ladies and gentlemen, they wanted to talk, didnt they? They want to meet him. They want to get a statement, they want to do their job which is investigate these things. [¶] Very polite. And notwithstanding this apparent willingness to come in, he never showed up."

Defendant contends the prosecutors questions and argument regarding his failure to make a statement to the police violated his Fifth Amendment right to remain silent. In Jenkins v. Anderson (1980) 447 U.S. 231, 238, the United States Supreme Court held that when the defendant testifies, "the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendants credibility." However, the court expressly left open the question of whether the Fifth Amendment permits prearrest silence to be offered as substantive evidence of guilt in the prosecutions case-in-chief. (Id. at p. 236, fn. 2 ["Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment. We simply do not reach that issue because the rule of [Raffel v. United States (1926) 271 U.S. 494] clearly permits impeachment even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent"].) Since Jenkins, a split of authority has developed among the federal circuit courts. Focusing on the fact that the defendant is not in custody, the Fifth, Ninth and Eleventh Circuits have held that it is permissible to comment on defendants prearrest silence. (United States v. Zanabria (5th Cir. 1996) 74 F.3d 590, 593; United States v. Oplinger (9th Cir. 1998) 150 F.3d 1061, 1066-1067; United States v. Rivera (11th Cir. 1991) 944 F.2d 1563, 1567-1568.) The First, Sixth, Seventh and Tenth Circuits have reached the opposite conclusion. (Combs v. Coyle (6th Cir. 2000) 205 F.3d 269, 283; United States v. Burson (10th Cir. 1991) 952 F.2d 1196, 1201; Coppola v. Powell (1st Cir. 1989) 878 F.2d 1562, 1568; United States ex rel. Savory v. Lane (7th Cir. 1987) 832 F.2d 1011, 1017.) These cases rely on three Fifth Amendment principles: (1) the invocation of the privilege must be given a broad and liberal construction; (2) the invocation of the privilege requires no special words; and (3) the privilege can be asserted by a suspect during an investigation. (United States v. Burson, supra, at p. 1200 ["Applying these basic legal principles, we have little trouble in concluding Mr. Burson invoked his privilege against self-incrimination"]; Combs v. Coyle, supra, at p. 283 ["In a prearrest setting as well as in a post-arrest setting, it is clear that a potential defendants comments could provide damaging evidence that might be used in a criminal prosecution; the privilege should thus apply"].) The Attorney General urges us to follow those cases that have held it is permissible to comment on defendants prearrest silence.⁶ Defendant contends the decisions of circuit courts that have held the use of prearrest silence as substantive evidence of defendants guilt violates the Fifth Amendment are better reasoned. We agree that the better analysis results in constitutional protection for assertion of the right to remain silent prior to arrest. (See People v. Waldie (2009) 173 Cal.App.4th 358, 365-366 [admission of evidence and argument about defendants prearrest silence was error under the Fifth Amendment].)

6 Quoting United States v. Geise (1979) 597 F.2d 1170, 1197, the Attorney General argues " `Neither due process, fundamental fairness, nor any more explicit right contained in the Constitution is violated by the admission of the silence of a person, not in custody or under indictment, in the face of accusations of criminal behavior. "

U.S. ex rel. Savory v. Lane, supra, 832 F.2d 1011, is particularly instructive. In that case, defendant objected to evidence that when police first asked to interview him a week after the murders, he told them that "he didnt want to talk about it, he didnt want to make any statements." (Id. at p. 1015.) "The prosecutor emphasized this statement in closing argument: `I believe you heard that on that date of January 25th, 1977, Officers George Pinkney and Edgar Hanes went to the Late Afternoon School to talk to Johnnie Savory, who they thought might have some information regarding the case. They asked him that afternoon about 3:30, they wanted to talk to him about Scopie, what he might know. The Defendant, what did he say at that time, ladies and gentlemen? "I dont want to talk about it. I wont make any statements." This, ladies and gentlemen, the apparent good friend of his, he doesnt want to talk about it, doesnt want to help the police at that time . . . . " (Ibid.) The court concluded that admission of this evidence and the states argument violated defendants constitutional right to remain silent. Similarly, the state in U.S. ex rel. Savory v. Lane argued that the use of defendants prearrest silence to imply guilt did not implicate defendants constitutional rights. The court rejected that argument as "nothing short of incredible, given the language of our constitution and the interpretation it has been consistently given." (Id. at p. 1018.) The court explained that the rationale of Griffin v. California (1965) 380 U.S. 609, which precludes the prosecutor from inferring guilt from defendants silence at trial, applies equally to a defendants silence before trial, and indeed, even before arrest. (832 F.2d at p. 1017.)

The protection afforded prearrest silence, however, is not unqualified. In People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520-1521, the court explained that the circumstances surrounding defendants silence must be considered to determine whether defendants "conduct was an assertion of his rights to silence and counsel." A defendants silence is protected only "when the evidence demonstrates that [his or her] silence . . . results primarily from the conscious exercise of his constitutional rights." (Ibid.) In Combs, the court observed, "The Supreme Court has given the privilege against self-incrimination a broad scope, explaining that "[i]t can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." [Citations.] In a prearrest setting as well as in a post-arrest setting, it is clear that a potential defendants comments could provide damaging evidence that might be used in a criminal prosecution; the privilege should thus apply." (Combs v. Coyle, supra, 205 F.3d at p. 283, citing Hoffman v. United States (1951) 341 U.S. 479, 486-487 ["To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result"].)

In evaluating whether a defendant invoked his right to remain silent, we accept the trial courts factual findings and evaluations of credibility if supported by substantial evidence. (People v. Box (2000) 23 Cal.4th 1153, 1194.) While we must undertake an independent review of the record to determine whether the right to remain silent was invoked (People v. Jennings (1988) 46 Cal.3d 963, 979), we also " `give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence." (Ibid.; People v. Wash (1993) 6 Cal.4th 215, 235-236.) Despite the trial courts contrary conclusion here, the timing of events strongly suggests that defendants refusal to make a statement was an assertion of his right to remain silent. Defendant apparently conferred with an attorney and declined to speak with the police based on the attorneys advice. That is the most likely explanation for his change of heart. Because defendant was exercising his Fifth Amendment right in refusing to make a statement to the police, the trial court erred in admitting Camilleris testimony and by allowing the prosecutor to argue that defendants failure to make a statement was evidence of his guilt.

Under Chapman v. California (1967) 386 U.S. 18, 24, a violation of a criminal defendants federal constitutional rights requires reversal of the judgment unless the reviewing court determines "beyond a reasonable doubt that the error complained of did not contribute to the verdict." An error may be harmless beyond a reasonable doubt where "[t]he evidence of defendants guilt [is] overwhelming." (People v. Riggs (2008) 44 Cal.4th 248, 317.)

Here, defendant not only refused to speak with the police, but he attempted to evade arrest, which was properly shown by evidence independent of his silence, demonstrating far more persuasively his consciousness of guilt. This evidence coupled with two eyewitness identifications of defendant as one of the robbers, his DNA on the bandana found at the site of the robbery, and Whites dying declaration that S.B. pushed her out of the car overwhelmingly establish defendants involvement in the robbery and the carjacking.⁷ The admission of the additional evidence that defendant chose not to make a statement to the police on advice of counsel was therefore harmless beyond a reasonable doubt.

7 The evidence on which defendants conviction of murder was based was more equivocal. Since we affirm the order granting a new trial with respect to that conviction, we need not decide whether the erroneous admission of the testimony regarding defendants silence was harmless with respect to that offense.

3. The civil lawsuit against Officer Watts

Prior to trial, the prosecutor moved to preclude any reference to the wrongful death action filed by Whites mother against Officer Watts and the city, which alleged that Whites death was caused by Wattss negligence. The court granted the motion under Evidence Code section 352, but indicated that the evidence might be admissible to impeach the mother should she testify. The court offered to reconsider its ruling if defendant showed that the lawsuit alleged punitive damages against Watts for which he would be personally liable. No such evidence was presented. In cross-examining Watts, the defense therefore was precluded from questioning him about the mothers wrongful death action. Defendant contends that the courts ruling violated his Sixth Amendment right to confront the witnesses against him.

"The confrontation clause guarantees the defendant in a criminal prosecution the right of cross-examination, which includes exploration of bias. [Citation.] `It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsels inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. [Citations.] . . . [¶] The determination whether a defendant has been denied the right of confrontation is focused on the individual witness. The standard for determining if a confrontation clause violation has occurred is whether a reasonable jury might have received a significantly different impression of the witnesss credibility had the defendant been permitted to pursue his proposed line of cross-examination." (People v. Greenberger (1997) 58 Cal.App.4th 298, 349-350.)

Officer Watts was cross-examined extensively regarding the reasonableness of his conduct on the bridge. Defense counsel questioned him concerning several inconsistencies and omissions between his trial testimony and his initial statements about the crime. The defense brought out that Watts had been with the San Francisco Police Department for only seven months and was still on probation at the time of the crime. In closing argument, counsel argued that Watts made critical errors on the bridge. He argued that when the passenger got out of the car and was ordered to the ground by Watts, White, hearing Wattss commands, remained on the ground, causing her to be in the path of oncoming traffic. The prosecutor argued, "He was under a lot of stress. No ones blaming him for doing something evil or wrong or anything of that nature. Well, perhaps wrong, negligent, but hes not a criminal. I mean, he did the best he could under the circumstances." We do not believe the trial court abused its discretion in precluding cross-examination concerning the civil action, given its marginal relevance and potential for distraction. Even if the line of questioning should have been permitted, it is highly unlikely that the jury would have received a different impression of Watts had they known that Whites mother had filed a wrongful death action against him. Accordingly, the court did not err in excluding this evidence.

4. Carjacking Instructions

After deliberations began, the jury sent a note to the court asking, "If White exited the car on the bridge of her own accord, independently of others, [is] defendant still responsible?" The question appeared to be in reference to the exonerating independent cause instruction that was given in connection with the murder charge. In response, the court clarified that it was assuming that the jury was "asking a question based upon the concurrent cause rule and the exonerating cause rule," then re-read the standard instructions already given on causation.⁸ To these instructions, the court added, "If her being struck was due to a cause independent from, disconnected from or did not flow from any robbery or carjacking in progress, . . . such being the conduct of the other occupants of the Ford, neither of the defendants are guilty of homicide. [¶] If she got out of the car due to force or fear of those inside the car or because of conduct having to do with any robbery or carjacking in progress, her conduct is not independent of, nor is it disconnected from the robbery or the carjacking in progress. [¶] If her getting out of the car and thereafter getting struck flowed from or was connected to such illegal conduct of the occupants, the occupants are not exonerated by any independent cause."⁹

8 The jury had already been instructed pursuant to CALJIC Nos. 8.56 and 3.41 as follows: "The general rule is that it is not a defense to a criminal charge that the deceased or some other person was guilty of negligence, which was a contributory cause of the death involved in the case." "There may be more than one cause of the death in this case. When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each person is a cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death. [¶] If you find that any defendants conduct was a cause of the death to another person, then it is no defense that the conduct of some other person, even [Lenties White herself], contributed to her death." The jury had also been given the following special instruction on superseding cause: "However, if you find that there were one or more independent intervening causes in addition to and following the act of any defendant or his accomplice that caused Lenties Whites death, and that those intervening facts were so disconnected to the occupants of the Ford and unforeseeable so as to be a superseding cause of her death, then the defendants are entitled to a verdict of not guilty as to murder or manslaughter. [¶] In order to be independent, the intervening cause must be unforeseeable and disconnected from and not flow from any robbery or carjacking in progress. Such event must be extraordinary and abnormal and of such a nature which rises to the level of an extraordinary superseding cause."

9 In discussions with the trial court, defendants initially suggested that the answer to the jurys question was simply "no." Later, they submitted a proposed answer that read, "If she got out of her own accord and not because of the conduct of an occupant or occupants of the car attempting to further a robbery or carjacking, the defendant or defendants are not responsible for her death."

Defendant claims that these supplemental instructions were prejudicial with regard to his carjacking conviction. He argues, "The answer to the note was confusing, did not answer the jurys question, steered the jury away from the subject of the question toward a finding of culpability, and did not inform the jury of the clearly exculpatory impact of its proffered scenario in the carjacking charge. Moreover, both the question from the jury, which showed that at least one juror was leaning toward a finding of facts exculpatory to the defendant, and the trial courts problematic answer went to the very heart of the case: was the defendant guilty of carjacking?" The jurys question and the courts answer, however, was not made in reference to the carjacking charge. The question referenced the causation instructions relevant to the murder charge and was treated as such by the trial judge, the prosecutor and the defense attorneys. Contrary to defendants assertion, at no point did the defense object on the ground that the answer might be misleading as to the carjacking charge.

In any event, the jury was properly instructed on the necessary elements of carjacking. The jury was instructed that "Every person who takes a motor vehicle in the possession of another from her person . . . against her will and with the intent to either permanently or temporarily deprive the person in possession of the vehicle of her possession, accomplished by means of force or fear, is guilty of the crime of carjacking." The additional instructions given by the court in response to the jurys question did not alter the carjacking instructions. Nor was it likely to confuse the jury in that regard.

5. Whites Statements on the Bridge

As set forth above, as White lay bleeding on the bridge, in response to Officer Ascheros questions she stated that "S.B." threw her out of the car. While Aschero asked White questions, Officer Pasquinzo took notes of the conversation. Those notes were lost or destroyed prior to trial. Defendant moved in limine to exclude Whites statements on many grounds, all of which were rejected. On appeal, defendant contends the admission of Whites statements violated his constitutional rights to confrontation and due process. He also argues that as a sanction for the polices failure to preserve Pasquinzos notes the jury should have been instructed to view Whites identification of S.B. with caution.

In Crawford v. Washington (2004) 541 U.S. 36, the Supreme Court "held that out-of-court statements by a witness that are testimonial are barred under the Sixth Amendments confrontation clause unless the witness is shown to be unavailable and the defendant has had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the trial court." (People v. Monterroso (2004) 34 Cal.4th 743, 763.) The sole potential exception to this rule recognized by Crawford is for dying declarations. (541 U.S. at p. 1367, fn. 6.) In Monterroso, the California Supreme Court held that the admission of dying declarations, even if testimonial in nature, does not violate a defendants Sixth Amendment right to confrontation. (34 Cal.4th at p. 764.)¹⁰ Thus, to establish that evidence of Whites statements was received in violation of defendants Sixth Amendment rights, the defendant must show that the statements were testimonial and not within the exception for dying declarations.

10 Acknowledging that Monterroso is controlling on this court, defendant seeks to preserve for federal review his argument that dying declarations are not a valid exception to the Crawford rule.

In Davis v. Washington (2006) 547 U.S. 813, 822, the court held that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." In People v. Cage (2007) 40 Cal.4th 965, 984, the court set forth the following six principles derived from Davis: "First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined `objectively, considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Fns. omitted.)

Here, the officers were responding to an ongoing emergency. Watts had been following a car that he believed was carrying armed robbers. White was pushed out of the car into oncoming traffic and the car drove away. Officer Aschero arrived at the scene only minutes after White had been hit. Her attempts to ascertain what had happened and who did it were intended, by her own admission, in part to investigate the crime. However, they also served to help take control of the crime scene and to obtain information that might be useful in apprehending the other person or persons involved, who were then fleeing the scene. The proper characterization of the statement as testimonial or nontestimonial is a close question, but it need not be decided because, in all events, Whites statements were properly admissible as dying declarations.

Evidence Code section 1242 provides that "[e]vidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death." The cause of circumstances of ones death has been interpreted broadly to " `embrace, not only the actual facts of the assault and the circumstances surrounding it, but the matters immediately antecedent to and having a direct causal connection with the assault as well as acts immediately following the assault and so closely connected with it as to form in reality a part of the occurrence. " (People v. Gatson (1998) 60 Cal.App.4th 1020, 1025.) In Monterroso, the court recognized that the common law allowed the declaration of the deceased, after a mortal blow, as to the fact itself, and the party by whom it was committed. (Monterroso, supra, 34 Cal.4th at p. 764.) Accordingly, Whites statements that it was S.B. who threw her from the car and that he lived near Fillmore and McAllister fall within the scope of the dying declaration exception.

Defendant argues that even assuming the evidence was not inadmissible under Crawford, it was error not to exclude the statements under Bruton v. United States (1968) 391 U.S. 123 (Bruton ). In Bruton, the court held that the admission of a statement of an accomplice or co-participant that implicates a defendant violates the defendants Sixth Amendment rights when the defendant has no opportunity to cross-examine the co-participant. (Id. at pp. 127-128; see also Lee v. Illinois (1986) 476 U.S. 530, 541 [there is a "basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination"].) This is so even when the accomplice is not tried with the defendant. (Douglas v. Alabama (1965) 380 U.S. 415, 418-420.) Bruton, however, "does not stand for the proposition that all statements of one defendant that implicate another may not be introduced against all defendants in a joint trial. The Bruton opinion itself stated that the offending hearsay statement in that case was clearly inadmissible against the nondeclarant under traditional rules of evidence, and that there was no recognized exception to the hearsay rule for its admission." (People v. Greenberger, supra, 58 Cal.App.4th at p. 332.) In contrast, where the evidence is admissible pursuant to a recognized hearsay exception and does not otherwise offend the Sixth Amendments confrontation clause, Bruton does not require exclusion. (Id. at pp. 332, 334; People v. Cervantes (2004) 118 Cal.App.4th 162, 176-177.) As discussed above, Whites statements qualify as dying declarations and thus were admissible against defendant regardless of whether she was his accomplice in the robbery.

Moving beyond the Sixth Amendment, defendant argues that the due process clause independently required exclusion of Whites statements because they were involuntary and inherently unreliable. However, there is absolutely no evidence of police coercion sufficient to render Whites statements involuntary. (See People v. Williams (1997) 16 Cal.4th 635, 659 ["A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity"].) Likewise, substantial evidence supports the conclusion that despite Whites injuries and drug use, she was conscious and lucid at the time she made the statements. The admission of her statements did not violate defendants right to due process.

Finally, defendant argues that the court erred in failing to instruct the jury that Whites statement identifying S.B. should be viewed with distrust because the police lost the officers note containing the critical statement. "Law enforcement agencies have a duty to preserve evidence `that might be expected to play a significant role in the suspects defense. [Citations.] To fall within the scope of this duty, the evidence `must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. [Citations.] Furthermore, `unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. " (People v. Hines (1997) 15 Cal.4th 997, 1042, citing California v. Trombetta (1984) 467 U.S. 479, 488.) The potentially exculpatory information in Pasquinzos notes was that he initially wrote that White identified the person who pushed her as "N.B." but changed it to "S.B." after White repeated the name. Any prejudice from the loss of this evidence was avoided, however, by Pasquinzos acknowledgement of this fact in his testimony. No cautionary instruction was required.

6. Wattss statement that White was "either kicked or thrown out of the vehicle"

Officer Watts testified that after the car stopped on the bridge, the drivers side door opened and he "saw [a] hand, and then a head and a body fall out of the drivers side." She fell rather than stepped out of the vehicle. He opined further, without objection, that "she was pushed out or kicked out" of the car. Officer Garcia testified that when he spoke with Watts approximately one to two minutes after the accident, Watts told him that "he watched the white Ford Escort stop and that the female was either kicked out or thrown out of the vehicle into the southbound lane of traffic where [she] was struck by a vehicle going southbound." Over defendants objection, the trial court admitted the testimony as a spontaneous statement that qualified as a proper lay opinion.

Under Evidence Code section 1240, "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." Defendant does not question the spontaneity of the statement but argues that Wattss statement was not admissible as a spontaneous statement because he did not "perceive" White being kicked or thrown out of the car. While defendant is correct that Watts could not see what happened inside the car, his statement is a reasonable explanation of how he perceived White leaving the car. The trial court did not abuse its discretion in admitting Watts statement as a spontaneous statement. (People v. Roldan (2005) 35 Cal.4th 646, 714, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Nor was Watts statement an improper lay opinion. "A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witnesss testimony (Evid. Code, § 800, subd. (b)), `i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. " (People v. Hinton (2006) 37 Cal.4th 839, 889.) Wattss initial testimony attempted to describe how White exited the car. His comment that she fell rather than stepped out of the car did not fully convey what he observed. His additional statement that she was kicked or thrown out of the car provided a fuller description in lay terms of how she appeared to be exiting the car—not with movements that appeared to be volitional, but movements that appeared responsive to a force exerted by another. Accordingly the trial court did not abuse its discretion in admitting his statement as a lay opinion. (See People v. Farnam (2002) 28 Cal.4th 107, 153 [officers "testimony that defendant stood `in a posture like he was going to start fighting did not constitute inadmissible opinion testimony of a lay witness"].)¹¹

11 Defendant asserts without argument that admission of Watts s statement violated defendants confrontation clause rights under Crawford, supra, 541 U.S. at pages 53-54. Watts, however, testified at trial and was cross-examined extensively about what he witnessed on the bridge.

7. Severance

Section 1098 provides in pertinent part: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." The statute expresses a legislative preference for joint trials. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) "Joint trials are favored because they `promote [economy and] efficiency and `"serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." [Citation.] When defendants are charged with having committed `common crimes involving common events and victims, . . . the court is presented with a `"classic case" for a joint trial." (Ibid.) "The statute nevertheless permits the trial court to order separate trials, and the decision to do so is one `largely within the discretion of the trial court. [Citations.] Whether denial of a motion to sever constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion to sever." (People v. Boyde (1988) 46 Cal.3d 212, 232.)

Defendant contends that the trial court abused its discretion in refusing to sever the defendants trials because there was a conflict of interest between defendant and Thorns attorney, Eileen Burke.¹² Shortly before trial, the defense learned that Burke had successfully defended Lenties Whites brother, Roland White, in a murder trial and that she was representing Whites mother, Sandra McNeil, in a potential civil action. Defendant argued that "Ms. Burkes success in representing Mr. White has garnered her a great deal of admiration and loyalty from the alleged victims family and Roland White. . . . This loyalty from the members of the alleged victims family has resulted in several members of the victims family resisting any interviews from counsel for defendant without the presence of Ms. Burke as an attorney for the family. . . . . [¶] Roland White and other members of the White family are key defense witnesses for Mr. Brown. . . . [¶] Mr. White, who appeared willing to cooperate several years ago, has since been unavailable now that it is time for the trial. It is clear that his failure to assist the Brown defense is directly related to his relationship with Ms. Burke. So much so that Ms. Burke at first would not allow the Brown defense team to interview him without her being present. Then there was no interview at all allowed as Mr. White refused to talk to the Brown defense." Defendants attorney feared that members of the White family would fail to testify that Lenties White had known defendant most of her life and had never called him "S.B." The trial court denied the motion, observing that Burke would have her attachments to the family even if the cases were severed. The trial court also considered defendants concerns about the anticipated White family testify to be highly speculative.

12 Defendant also argues that the failure to sever the trials allowed Burke to improperly allude to inadmissible extrajudicial statements made by Thorn that prejudiced defendant. Burkes subsequent misconduct, however, is not relevant to whether the trial court abused its discretion in denying the severance motion, and is addressed separately, post.

Based on the evidence before the court at the time of its ruling, it was not an abuse of discretion to deny the motion. Moreover, Sandra McNeil testified that she had never known her daughter to call defendant "S.B.", so that defendants concerns did not materialize. Defendant argues on appeal that "[t]he fears expressed by the denial of the severance motion became a reality" when Burke called Sandra McNeil to the stand and brought out that she had known McNeil for about five years and was friends with the victims family. He suggests that "[t]he clear implication of Burkes questions was that the White family did not believe that Thorn was involved in Lenties Whites death; otherwise the White family would not be friends with Thorns attorney. This impermissibly strengthened Thorns contention that it was Brown, not Thorn in the Escort on the Golden Gate Bridge." This "fear" was not mentioned in support of the severance motion nor was it sufficiently prejudicial to require severance.

7. Burkes alleged misconduct

During the investigation of the crime, Officer Casillas interviewed Thorn. The prosecutor did not introduce evidence of the interview, nor could it be admitted by Thorn. During her cross-examination of Casillas, however, Burke asked whether he was lying when he told Thorn during the interview that the police had a tape from the bridge suicide cameras that "shows him getting out of the passenger side of the car, walking around the back of the car, getting in the drivers side and driving away." Casillas denied lying, but admitted that he had never seen such a video. Casillas explained that they "were letting him know that there could be some significant evidence in this case" and that the tape "could possibly show his presence on the bridge and that, therefore, . . . he should carefully consider if hes going to lie to [the police]." Then Burke asked, "And is it not accurate that this 20-year-old kid here called your bluff?" The prosecutor immediately objected and the court struck the question, admonishing the jury to disregard it. Outside the presence of the jury, the court advised Burke that her question had violated the pretrial ruling that Thorns statements were inadmissible. The court continued, "The clear implication from your question . . . clearly and unmistakably means that youre trying to convey to the jury that he gave a statement that completely denied anything in the implication about getting out of the car and being on the bridge and driving away." In closing argument, Burke again suggested that Thorn denied being pulled over on the bridge and had called the inspectors bluff. The prosecutor again objected and the trial court agreed that Burke had "committed misconduct in this area twice."

Defendant contends that Burkes misconduct violated his right to due process and confrontation because Thorns denial suggests that "Brown was the person that Watts saw in the car with White." Citing Douglas v. Alabama (1965) 380 U.S. 415, 419-420, he argues that "[s]uch insinuations of a codefendants statements by improper questioning . . . are as much a Bruton violation as if the evidence were in fact admitted." Nothing in Burkes improper question or argument, however, suggested that defendant was driving the car. Consistent with his overall defense, Thorn argued simply that he was not involved in the robbery at Johnny Rockets and that he was not driving the car on the bridge. His denial that he was in the car carried no implication that defendant was driving the car. Indeed, in her opening statement Burke suggested there would be evidence that the car was being driven by a man named Boone. (She was precluded from continuing this argument in closing when the prosecution objected on the ground that no evidence had been admitted regarding Boone.) Accordingly, Burkes misconduct did not violate defendants constitutional rights.

8. Juror Misconduct

Defendant made a motion for new trial on the ground of juror misconduct. In support of his motion he submitted the declaration of juror M.S. stating that juror J.H. told the other members of the jury that she worked as a nurse and had experience with dying patients and that "during deliberations all of the jurors asked juror [J.H.] questions regarding whether or not Lenties White was lucid when she gave what was called, `her dying declaration. " However, juror M.S. could not remember J.H.s opinion. Defendants investigator also submitted a declaration stating that he had spoken with another juror who similarly reported that juror J.H. told the jury about her experience as a nurse and offered the opinion that White was most likely lucid at the time she gave her statement to the officer. The trial court denied the new trial motion on this ground.

Defendant contends that "juror J.H. committed reversible misconduct of federal constitutional dimension when she stated her expert opinion in the jury room that White was likely lucid when she made her statement on the bridge." We disagree. " ` "It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a jurors own claim to expertise or specialized knowledge of an issue is misconduct." " (People v. San Nicolas (2004) 34 Cal.4th 614, 649; see also People v. Steele (2002) 27 Cal.4th 1230, 1266 ["A juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence, but if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence. Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely ones background from ones analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations"].)

In San Nicolas, the defendant moved for a new trial on the ground that a juror who was a registered nurse improperly asserted her expertise during deliberations. The defendant submitted declarations from other jurors stating that the juror "disclosed to the jury that she was a nurse, and she explained a number of the medical issues relating to blood pressure and circulation. `She also explained shunting, and the manner in which the body would have directed the blood after the stab wounds were inflicted. Her explanations were helpful in determining whether the child was dead before she was sexually assaulted. " (People v. San Nicolas, supra, 34 Cal.4th at p. 648.) The court found that the trial court did not abuse its discretion in ruling that there was no misconduct where "the evidence presented in support of defendants motion for a new trial [did] not show that Renee P. offered the jurors any basis for deciding the case other than the evidence and testimony presented at trial. No declaration suggests that she made any assertion inconsistent with the properly admitted evidence and testimony. Indeed, the remarks attributed to her in her declaration are consistent with the trial testimony of the pathologist, who expounded at length on the concept of blood flow, circulation, and the meaning of `shunting. " (Id. at p. 650.) Likewise, in this case the responding officer and paramedic testified that White was conscious and able to communicate when they spoke to her on the bridge while the defense presented expert testimony suggesting that her ability to communicate and her perception might have been compromised by her injuries and drug use. It was not misconduct for Juror J.H. to rely on her professional experience to evaluate the competing evidence. Nothing in the declarations suggests that "she made any assertion inconsistent with the properly admitted evidence and testimony." (Ibid.)

9. Gun Enhancements

Defendant contends that the gun enhancements must be set aside because the trial courts supplemental instruction created a mandatory presumption of guilt. During deliberations, the jury requested further instruction on the difference between the gun enhancements under sections 12022.5, subdivision (a) (personal use of a firearm), 12022.53 (b) (personal use of a firearm during a specified felony), and 12022, subdivision (a)(1) (principal armed with a firearm). The court clarified the different required findings, but the following morning the jury continued to have questions. After offering additional clarification on the required findings, the trial judge added, "It appears that you have seen and appreciate the special findings under [sections] 12022.5 and 12022.53 are identical. So Im instructing you that they are identical factual findings. [¶] There is no difference between the facts that must support a finding of one than the facts that must support a finding of the other. They are identical. [¶] The reason that theyre separate is they just happen to be lodged in two separate sections of the penal code, but they are identical findings. [¶] Neither is factually different from the other. Each requires the same factual proof and the same burden of proof. Either displaying or firing or striking or hitting. Any one of those three forms of use as set forth in the instruction is sufficient for a finding of true." The judge confirmed that if one is true the other is automatically true. "[I]f you [found] one was true and the other was untrue, Id bring it to your attention and ask the jury to resolve it. Are they both true, are they both untrue. [¶] They have to be identical."¹³

13 Defendants additional claim that "the trial court improperly told the jury a true finding that a principal was armed under [section] 12022(a)(1) was `sufficient for the jury to find the use allegations under [sections] 12022.5 and 12022.53 to be true" distorts the courts statement. The jury could not reasonably have interpreted the courts statement as suggested by defendant.

Defendant contends that the judges comments "created a mandatory presumption that required the jury to find the enhancements true without individually considering the elements of each. Thus, the true findings were made in violation of [his] federal constitutional right to have each element decided beyond a reasonable doubt." Defendant does not dispute that the elements of sections 12022.5, subdivision (a) and 12022.53, subdivision (b) are identical.¹⁴ Both enhancements apply to the personal use of a firearm and are governed by CALJIC No. 17.19.¹⁵ The sole difference between the two enhancements is that section 12022.5, subdivision (a) applies to the use of a firearm in the commission of any felony, while section 12022.53, subdivision (b) applies only to the use of a firearm during a felony specified in subdivision (a). Robbery is such an enumerated felony, so that the court correctly advised the jury that either the allegations were true as to both sections or as to neither. The courts supplemental instructions did not relieve the jury of its obligation to find that defendant personally used a firearm in the commission of the charged offenses. (See People v. Strickland (1974) 11 Cal.3d 946, 961.) Accordingly, there was no error.¹⁶

14 Section 12022.5, subdivision (a) provides: "Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." Section 12022.53, subdivision (b) provides, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply."

15 CALJIC No. 17.19 provides: "It is alleged [in Count[s] ] that the defendant[s] personally used a firearm during the commission of the crime[s] charged. [¶] If you find the defendant[s] guilty of [one or more of] the crime[s] charged [or an attempt to commit the crime[s] charged] [or a lesser and included felony offense], you must determine whether the defendant[s] personally used a firearm in the commission of [that] [those] [felony] [felonies]. [¶] The word `firearm includes [a .] [any device designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.] [The `firearm need not be operable.] [¶] The term `personally used a firearm, as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [¶] Include a special finding on that question in your verdict, using a form that will be supplied for that purpose."

16 Recognizing that People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825 are dispositive of his arguments in this court, defendant objects nonetheless to the imposition of upper terms and consecutive sentences to preserve his claims for further review.

II. The Peoples Appeal

The jury found defendant guilty of first degree felony murder and found true the special circumstance allegation that the murder was committed during the course of a robbery and carjacking. Thereafter, defendant moved for a new trial, in part on the ground that the court had erroneously delayed giving instructions on intervening, superseding cause until after defense counsels closing argument, thereby preventing defendants attorney "as a practical matter from arguing it to the jurors." Defendants attorney submitted a declaration explaining that he believed the lack of causation was a key issue in the case but that he felt unable to argue that theory in view of the courts refusal to instruct on it. On January 20, 2006, the court denied the motion, finding that the attorneys decision to focus on identification, rather than causation, was not constitutionally ineffective.

Two and a half weeks later, on February 7, 2006, defendant filed a renewed motion for new trial on the ground that his attorney was ineffective for failing to argue the causation defense. At the hearing that morning, the trial court indicated it was reconsidering its initial ruling and gave the parties two weeks to file additional briefing, stating "Ive discussed my current thinking with the attorneys, which I think may have come as a surprise to both counsel." On February 22, the court heard argument on the motion and on February 27 rendered its decision. The court prefaced its ruling with the following comments: "As part of the courts evaluation of the posttrial issues that were presented in various stages in these extended posttrial proceedings, the court became dissatisfied with its initial analysis that it had performed during the trial of the case and early on in the trial of the case regarding the causation issue. [¶] The court has reread the felony murder cases dealing with the reach of the felony murder law embracing possibly unanticipated, at least by the participants, consequences of the entire felony incident, and the court has evaluated the felony murder law that embraces accidents which—so-called accidents which still fall within the scope of the felony murder rule. [¶] Initially in this case, the court viewed the evidence as being structurally similar to the robbers gun at Johnny Rockets having accidently discharged due to various factors like surprise by the police or due to things that happened at the scene. [¶] . . . [¶] Viewing the getaway car drivers death from the horrible traffic accident while traveling away from the robbery scene as being reasonably foreseeable on a bridge known for traffic collisions, the court initially felt that such scenario was no more deserving of an exonerating cause instruction than would an accidental discharge of a gun at Johnny Rockets. [¶] This initial analysis by the court has a certain sense of persuasiveness to it, but ultimately, I now feel it was an inadequate analysis because it fails to account for the following facts: [¶] First of all, the person who performed the specific act that killed Lenties White was not a robber, nor an aider of a robber, but rather, a third party having no connection with the events in Johnny Rockets, nor having any connection with the getaway car proceeding onto the bridge and then stopping there. [¶] The driver of the car that killed Lenties White had nothing to do with Lenties Whites exit from the car, had nothing to do with her presence in the southbound lane or her conduct while staying in or her inability to or failure to exit from the southbound lane. [¶] The court does want to point out here that the court is not ruling that there was no felony murder liability as a matter of law or that the court would have decided the matter differently than the jury . . . . That is not what the court is doing at this point. . . . [¶] Furthermore, this ruling is not a verdict of acquittal. The court is granting—will be granting the motion for a new trial based upon ineffective assistance of counsel as I will later explain." The court continued, "The defendant was entitled to an exonerating cause instruction, which he did get, although in an improvident and untimely fashion, but most importantly, the defendant, for purposes of this motion, was entitled to presentation of an argument, which he did not get, on how Mr. Allens collision with Lenties White on the bridge might have been disconnected from the robbery and the carjacking and also unforeseeable by an objective person. . . . [¶] Furthermore, when the jury raised the causation issue in the terms that might well have been used in argument, the court did not, although it felt that it was doing the correct thing at the time, give the continuous and logical transaction instruction found in CALJIC 8.27 . . . . [¶] This combination of events, I believe, caused the defendant the denial of a substantial right as to the murder charge as to count 1 and was prejudicial . . . ." The court found that defendants counsel provided ineffective assistance by failing to argue that there was no legal causation. It explained that while the decision by defendants attorney "may have been influenced . . . by the delayed instruction on exonerating cause[,] [t]his delayed instruction alone would not be cause for a complete failure to argue the facts in light of the available instructions that were given before argument." The court noted that "on at least two occasions [the court] encouraged [defendants attorney] to argue the facts for lack of causation." The court rejected the prosecutors argument that the decision was a reasonable tactical decision explaining that "there was no reasonable tradeoff for a failure to argue causation."

Initially, the Attorney General contends that the trial court lacked authority to reconsider the motion for new trial once the order denying that motion was entered in the minutes. In People v. DeLouize (2004) 32 Cal.4th 1223, 1228, the court acknowledged that as a general rule "in a criminal case, a trial court that has denied a motion for a new trial lacks authority to consider and grant a second or renewed motion for a new trial." (Citing People v. Martin (1926) 199 Cal. 240, 242.) The Delouize court recognized, however, that this general rule was not "jurisdictional" in that numerous exceptions exist. (32 Cal.4th at p. 1228, fn. 1.) For example, " `[a]n order on a motion for new trial may be reconsidered (1) where the ruling is immediately reconsidered before it has been fixed by entry in the minutes and before any further proceedings have transpired [citation]; (2) in a furcated trial, where certain policy considerations render the general rule inapplicable [citation]; or (3) where the order is entered inadvertently or prematurely. " (Id. at p. 1230.) Another recognized exception exists "where defendants first motion was brought by his trial counsel on the sole ground of insufficiency of the evidence, and his second motion alleged ineffective representation by that very same counsel." (People v. Stewart (1988) 202 Cal.App.3d 759, 763.) In Stewart, the court explained that the general rule "does not deprive trial courts of the power to hear second new trial motions. Rather, it directs them to avoid extended new trial proceedings where possible, subject to reasonable exceptions in the interests of justice." (Ibid.) In that case, the court determined that the interests of justice supported the trial courts reconsideration of its prior order denying defendants motion for new trial where the second motion raised issues of ineffective assistance of counsel. The Stewart court explained, "In People v. Fosselman (1983) 33 Cal.3d 572, at pages 582-583 . . ., our Supreme Court directed trial courts to decide the competence of counsel issue on motions for new trial whenever possible. The Fosselman court considered trial judges to be the preferred decision-makers on this issue for three reasons: (1) trial judges observe counsels courtroom performance during the course of the trial; (2) they are constitutionally mandated to ensure a defendant a fair trial; and (3) judicial economy is promoted `by avoiding appellate review, or habeas corpus proceedings. . . . [Citation.] This last reason, the promotion of judicial efficiency, is also the purpose underlying the [general] rule. In this case, judicial economy is best served by recognizing the trial courts authority to rule on defendants inadequacy of counsel contention, even though raised in a second new trial motion." (202 Cal.App.3d at p. 763.)

Here, the trial court expressly noted that although granting the new trial motion produced an "unfortunate and undesirable result," it believed "the granting of [the] motion would be the probable, if not inevitable, result on appeal and so feeling, the court observes that the problem should be resolved at this point rather than years later." Under the circumstances, we do not believe the court exceeded its authority in reconsidering its prior ruling when convinced that it was erroneous.

Turning to the merits of the ruling, the Attorney General argues that defense counsels decision not to argue a lack of causation was a reasonable tactical decision, not deficient performance and that, in any event, the failure to present argument on the causation defense did not prejudice defendant because he was not entitled to the instructions on intervening, superseding causation.

When a trial court grants a defendants motion for a new trial, we review the order for abuse of discretion. (People v. Ault (2004) 33 Cal.4th 1250, 1255; People v. Callahan (2004) 124 Cal.App.4th 198, 211-212.) We do not substitute our judgment for the trial courts determination that the error was prejudicial. (People v. Ault, supra, at p. 1263.) "A party seeking to overturn a courts decision in this regard `has the burden to demonstrate that the trial courts decision was "irrational or arbitrary," or that it was not " `grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue. [Citation.]" [Citations.] [Citation.] This burden is a heavy one: ` "Where the motion is made on a proper . . . ground, and the record contains some showing in support of it, the judges discretion in granting is almost invariably upheld; i.e., the appellate court gives the order all of the presumptions in favor of any appealable judgment." " (People v. Callahan, supra, at pp. 211-212.) As the court in Ault recognized, "the long-established rule of deference to trial court orders granting new trials recognizes that those courts are best positioned to determine whether errors or irregularities in proceedings before them were prejudicial." (People v. Ault, supra, 33 Cal.4th at p. 1271.)

"As a court that reviews the conduct of counsel in hindsight, we are reluctant to second-guess tactical decisions made by trial counsel. [Citations.] We are equally, if not more reluctant, to second-guess the trial courts discretionary ruling that defense counsels tactical decisions made before it resulted in an unfair trial, i.e., a miscarriage of justice." (People v. Andrade (2000) 79 Cal.App.4th 651, 660.) In Andrade, the court explained, "In theory and in practice, there comes a time when a tactical decision is so unreasonable that the trial court is compelled to intervene. . . . `[C]riminal defendants, regardless of their guilt or innocence, are entitled to a fair trial . . ., and the trial court is obligated to grant a new trial if it finds the result of the first trial to have been unfair. [Citation.] [¶] A trial court serves as a `gatekeeper on a motion for new trial. It opens the gate only rarely, a testament to the fact that the vast majority of trials resulting in conviction are fairly conducted. In these cases, motions for new trial are routinely made, routinely denied, and are routinely affirmed on appeal. In the remaining cases, however, the trial court grants the motion, and we affirm those rulings in the absence of a clear showing of abuse of discretion." (Id. at p. 661.)

In this case, the trial court found that despite its explicit encouragement to present a defense based on causation, defendants attorney made an unreasonable tactical decision to make an all-or-nothing argument regarding identification. The court explained that this tactic was unreasonable in part because the two defenses were not incompatible, i.e., there was no trade-off for the failure to argue causation. The trial courts conclusion is amply supported by the record and does not reflect an abuse of discretion.

The Attorney General also argues that the failure to argue intervening, superseding causation could not have materially affected the outcome of the case because defendant was not entitled to those instructions in the first place.¹⁷ A defendant has a right to instructions that pinpoint the theory of the defense where those instructions are supported by substantial evidence. (People v. Roldan, supra, 35 Cal.4th at p. 715, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) A defendants right to instructions "does not turn on the courts assessment of credibility or the strength of the evidence." (People v. Cleaves (1991) 229 Cal.App.3d 367, 371.) An instruction should be given if the defenses theory is supported by substantial evidence, "which means evidence sufficient to deserve consideration by the jury, i.e., evidence from which a reasonable jury could find the existence of the facts underlying the instruction." (Id. at p. 372.)

17 Defendant contends that we should reject the Attorney Generals argument because in the trial court the prosecutor supported the defendants request for the instructions. Because the issue is whether the failure to make an argument was prejudicial, rather than whether the instructions were properly given, principles of waiver and estoppel are not directly on point. Nonetheless, the strength of the Attorney Generals argument is diminished significantly by the prosecutors agreement that the instructions were warranted based on the facts presented at trial.

This court recently summarized the law of causation as follows: " `"[T]he law defines `cause in its own particular way." [Citation.] A `cause of [death] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the [death] and without which the [death] would not occur. . . . [¶] `In general, "[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating." [Citation.] If an intervening act, event or force is present, however, it is necessary to determine whether that act, event or force is sufficient to absolve the defendant of liability `because the "defendant may also be criminally liable for a result directly caused by his or her act, even though there is another contributing cause." [Citations.] [¶] `In law, the term "superseding cause" means "an independent event [that] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original [wrongdoer] should have foreseen that the law deems it unfair to hold him responsible." [Citation.] ` "In general, an `independent intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be `independent the intervening cause must be `unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause. [Citation.] On the other hand, a `dependent intervening cause will not relieve the defendant of criminal liability. `. . . If an intervening cause is a normal and reasonably foreseeable result of defendants original act the intervening act is "dependent" and not a superseding cause, and will not relieve defendant of liability. " [Citation.] . . . Thus, `[t]he defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act. [Citations.] [¶] `[T]here is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus. " (People v. Brady (2005) 129 Cal.App.4th 1314, 1324-1326; see also People v. Dawson (2009) 172 Cal.App.4th 1073, 1093-1095.)

Here, in finding defendant guilty of carjacking the jury found that defendant took the car from White against her will by means of force or fear. In pushing White from the Ford onto the roadway of the Golden Gate Bridge, as the jury presumably found that defendant did, there may well have been a foreseeable risk that she would be hit by oncoming traffic, but the likelihood of this occurring would be affected by the extent of the traffic when these events took place, between 1:00 a.m. and 2:00 a.m. in the morning, and by the fact that the car had stopped in an area surrounded by traffic cones within which cars were not supposed to drive. Moreover, the situation here was further complicated not only by the intoxication of the driver of the car that struck White, but by Officer Wattss orders to stay on the ground. That an armed police officer would direct White to remain on the roadway in the face of oncoming traffic, or to appear to do so, if that is what the jury were to find occurred, can reasonably be argued to be beyond the scope of the risk created by pushing White from the car, and an intervening superseding cause of her death. The court and both trial attorneys believed that the evidence was sufficient to warrant the exonerating cause instructions, and the jurys question regarding causation supports that conclusion. Giving due deference to the trial courts opinion that defendant was prejudiced by his attorneys failure to argue the lack of legal causation, we must affirm the order granting defendants motion for new trial.

III. Petition for Writ of Habeas Corpus

Defendants petition for writ of habeas corpus presents a claim for ineffective assistance of counsel going to the defense of all of the offenses for which he was convicted. A party who contends he received ineffective assistance has the burden of proving that (1) trial counsels performance was deficient in that it fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)

Defendant contends that his attorney "was ineffective in failing to investigate and present admissible testimony regarding [his] missing tooth." He explains that his primary defense at trial was that he was misidentified by the victims at Johnny Rockets. After the defense had rested but prior to closing arguments, defendants attorney sought to reopen the case so that defendants investigator could testify that defendant has a distinctive missing front tooth. He argued that the missing tooth was relevant because although distinctive, none of the victims included the missing tooth in their descriptions of the robber. In fact, one of the victims told the police that there was nothing unusual about the features of the robbers face. The trial court refused to reopen the case for this purpose because the investigator could not state that the tooth was missing on the night of the robbery. Defendant contends that his sister, who testified at trial, could have testified that the tooth had been missing since childhood, and that his attorneys failure to investigate whether he could lay the necessary foundation with her testimony amounted to ineffective assistance of counsel. The Attorney General suggests that defense counsels error was not his failure to investigate and his "omission was simply his failure to anticipate an adverse ruling by the trial court on the foundation for the proffered testimony." The Attorney General argues that unlike a case involving a complete failure to investigate, in a case based on the defendants "dissatisfaction with the degree of his attorneys investigation" the presumption of reasonableness is difficult to overcome. Considering that very limited investigation could have produced a witness to lay the necessary foundation, we cannot agree with the Attorney General that the failure to do so is reasonable in a case in which identification is the primary issue.

Nonetheless, we agree that defense counsels failure in this regard was harmless. Although two victims identified defendant in a photo line-up, the identifications were equivocal and both victims testified it was too dark for them to see the gunmans face clearly. The defense cross-examined the witnesses extensively to establish that neither could describe the features of the gunmans face with any particularity. However, the general description of the robbers race, build and height combined with the DNA evidence found on the bandana left behind, as well as defendants known relationship to White, provided compelling evidence of identification. The fact that defendant has a missing tooth which the witnesses failed to notice was not likely to have affected the outcome.

Defendant also contends that his attorney "was ineffective in failing to investigate and present evidence that Officer David Garcia had written in his report that Lenties White stated her mothers name was `Sandra ONeil instead of correctly identifying her mother as Sandra McNeil." The evidence in support of this claim, however, is severely lacking. Officer Garcia did not attend to or speak with White on the bridge. He was responsible for compiling the official police report of the incident, which included among many witnesses statements, those made by White to Officers Aschero and Pasquinzo while on the bridge. The officers testimony and Ascheros incident report make clear that she heard White correctly identify her mother as Sandra McNeil. Defendants counsel was not ineffective in failing to introduce Garcias apparent typographical mistake into evidence.¹⁸

18 In response to the Attorney Generals arguments on appeal that at trial defendant waived certain objections, defendant asserts in his habeas petition that his attorney was ineffective in failing to preserve those objections. We need not reach this issue, however, because none of defendants arguments on appeal have been resolved on the ground of waiver.

DISPOSITION

The judgment and the order granting a new trial are affirmed. The petition for writ of habeas corpus is denied.

We concur:

McGuiness, P. J.

Jenkins, J.