Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD213507, Cynthia Bashant, Judge.
McCONNELL, P. J.
I
INTRODUCTION
A jury found Mahquecse Carradine guilty of grand theft from a person. (Pen. Code, § 487, subd. (c).) The jury also found true an allegation Carradine knew or should have known the victim was blind. (§ 667.9, subd. (a).) In addition, the trial court found true an allegation Carradine's prior Nevada conviction for burglary was a prior strike conviction under California law.
Further statutory references are to the Penal Code unless otherwise stated.
After granting Carradine's motion to dismiss the prior strike conviction allegation finding, the trial court sentenced Carradine to two years in prison for the grand theft from a person conviction plus one year for the blind victim enhancement allegation. The trial court stayed execution of the sentence and imposed formal probation conditioned upon Carradine serving 365 days in custody.
Carradine appeals, arguing his defense counsel provided ineffective assistance by failing to request the trial court instruct the jury with CALCRIM No. 318, which informs the jury how to treat a witness's prior inconsistent statements. In addition, he argues the trial court erroneously found that his prior Nevada burglary conviction was a prior strike conviction under California law. Finally, he contends the blind victim enhancement allegation finding must be reversed because this enhancement cannot be applied to the crime of grand theft from a person. The Attorney General concedes the last issue and we reverse the finding. In all other respects, we affirm the judgment.
II
BACKGROUND
Ezra Barnes left his hotel room midmorning and walked to a drug store. He has poor vision because of optical nerve damage. He wore dark glasses and carried a white cane. Along the way, Barnes asked someone where the store was and the person told him it was about 75 yards ahead. After taking about 20 to 30 steps, and less than 30 seconds after asking for directions, Barnes felt someone reach into his right back pocket and take his wallet. His wallet contained approximately $200: seven $20 bills and the rest in various other denominations.
Barnes turned around and saw a man in a light colored shirt and light colored pants running. Barnes immediately yelled out that he was blind, that someone had taken his wallet, and that he needed help. Passersby called 911 and police officers arrived within seven to 10 minutes.
Barnes has blurry vision up to 20 feet depending on the lighting. Within that range, he can distinguish between light and dark, but not colors.
Luis Medina was walking in the opposite direction of Barnes and saw a man wearing a white shirt with a design and blue denim pants following Barnes. Barnes and the man walked by Medina and when Medina happened to look back, he saw the man pull the wallet from Barnes's pocket. The man ran towards Medina and Medina tried to block his path. After coming within two to three feet of Medina, the man then turned and ran the other way and Medina ran after him. The man threw the wallet on the ground about a block from where he took it and kept running. Medina lost sight of the man for two or three minutes during the chase. When Medina saw the man again, the man was still running, but was no longer wearing the white shirt with a design. Medina continued chasing the man for a half block more until police officers arrived. Medina pointed out the man to the officers and the officers arrested the man, who turned out to be Carradine. Medina also identified Carradine as the man at the preliminary hearing and at trial.
San Diego Police Officer Jason Prokop responded to the incident. He did not have a description of the suspect. When he arrived at the scene, he saw two people running. One person was approximately 10 to 15 feet behind the other. The person in pursuit pointed to the person in the lead and yelled, "him." Officer Prokop subsequently caught and arrested Carradine. At the time of his arrest, Carradine was wearing a white shirt with no design on it and blue jeans. No one told Prokop the suspect had changed clothes. Officer Prokop found $152 balled up in Carradine's right front pocket. The ball of money included seven $20 bills, one $5 bill, and seven $1 bills.
III
DISCUSSION
A. No Ineffective Assistance of Defense Counsel
Carradine's defense at trial was mistaken identification and was based largely on discrepancies between Medina's preliminary hearing and trial testimony. Specifically, at the preliminary hearing, Medina testified the man he chased had been wearing blue jeans, but at trial he testified he did not remember the color of the man's pants. In addition, at the preliminary hearing, Medina testified he turned around to look at Barnes after he heard Barnes call for help. However, at trial he testified he never heard Barnes screaming, but happened to turn around as the theft occurred. Given this defense, Carradine argues his defense counsel should have requested the trial court instruct the jury with CALCRIM No. 318 and, by failing to do so, his defense counsel provided ineffective assistance. We conclude there is no merit to this contention.
"In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it 'fell below an objective standard of reasonableness [¶]... under prevailing professional norms.' [Citations.] Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (People v. Ledesma (2006) 39 Cal.4th 641, 745-746; People v. Salcido (2008) 44 Cal.4th 93, 170.)
The CALCRIM No. 318 instruction is used when a testifying witness has been confronted with a prior inconsistent statement. (CALCRIM No. 318, Bench Notes (2009) p. 96.) The instruction informs the jury that if the jury decides the witness made the prior inconsistent statement, the jury may use the prior inconsistent statement in two ways: (1) to evaluate whether the witness's trial testimony is believable; and (2) as evidence that the information in the prior inconsistent statement is true. (CALCRIM No. 318.)
The record in this case sheds no light on why defense counsel did not request this instruction and, therefore, we must presume defense counsel made a constitutionally reasonable tactical choice not to request it. Moreover, we can fathom at least two reasons why defense counsel might not have wanted the trial court to give the instruction. If given, the instruction would have informed the jury that it could find Medina's prior inconsistent statements to be true. The corresponding implication is that Medina's trial testimony was false. However, presumably because Medina had acted valiantly in aiding Barnes, defense counsel took care to ensure the jury knew he was not arguing Medina had testified falsely, only that Medina had been mistaken. Defense counsel may have decided not to request the instruction to avoid undermining this argument.
In addition, Medina's prior inconsistent statement regarding the color of Carradine's pants tended to inculpate Carradine. Carradine might have been disadvantaged if the jury was instructed it could, and the prosecution then argued it should, consider the statement to be true. Defense counsel may have decided not to request the instruction to avoid this possibility.
Even assuming defense counsel did not make a constitutionally reasonable tactical choice not to request the CALCRIM No. 318 instruction, Carradine has not shown he was prejudiced as a result because the trial court instructed the jury with CALCRIM Nos. 226 and 315, which provided the jury with similar guidance. CALCRIM No. 226 informed the jury that it is the sole judge of a witness's credibility or believability, that it may use common sense and experience in deciding whether a witness's testimony is true or accurate, and that it may believe all, part, or none of a witness's testimony. (CALCRIM No. 226.) The instruction also informed the jury that, in evaluating a witness's testimony, it may "consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony," including: "[h]ow well could the witness see, hear, or otherwise perceive the things about which the witness testified"; "[h]ow well was the witness able to remember and describe what happened"; and whether the witness made "a statement in the past that is consistent or inconsistent with his or her testimony." (Ibid.)
CALCRIM No. 315 informed the jury that "[a]s with any other witness, [it] must decide whether an eyewitness gave truthful and accurate testimony." The instruction further informed the jury to consider several factors in evaluating the identification testimony, including: how well the witness could see the perpetrator; what circumstances affected the witness's ability to observe the perpetrator; and whether the witness gave a description of the perpetrator and how that description compared to the defendant. (Ibid.)
These two instructions enabled defense counsel to challenge Medina's testimony on all applicable bases, including his prior inconsistent statements, while avoiding the potential pitfalls of the CALCRIM No. 318 instruction. Accordingly, Carradine has not established that, absent defense counsel's failure to request the CALCRIM No. 318 instruction, there is a reasonable probability the trial result would have been different. (People v. Ledesma, supra, 39 Cal.4th at p. 746.)
B. Nevada Prior Strike Conviction Moot
Carradine contends there is insufficient evidence to support the trial court's finding that his Nevada burglary conviction is a prior strike conviction under California law. The People contend this issue is moot because the trial court dismissed the prior strike conviction under Penal Code section 1385. We agree.
"A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief." (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503; accord, People v. Rish (2008) 163 Cal.App.4th 1370, 1380.) By dismissing the prior strike conviction allegation, the trial court precluded its further use against Carradine in this case. (People v. Carrillo (2001) 87 Cal.App.4th 1416, 1421 [dismissal of strike unconditionally deletes its legal efficacy and cuts off its use against a defendant in a specific proceeding].) Accordingly, our reversal of the trial court's finding would have no practical effect and would not provide Carradine with any relief. (See, e.g., People v. Davis (1996) 42 Cal.App.4th 806, 820 [even though a reviewing court concludes there is insufficient evidence to support a prior conviction finding, there is nothing for the reviewing court to correct if the trial court dismissed the finding and did not imposed a sentence for it].)
While acknowledging the trial court's finding does not directly impact him, Carradine urges us to decide this issue as the trial court's finding might detrimentally impact him in the future in some unforeseen manner. We conclude this prospect is too abstract to warrant review of the issue notwithstanding its mootness. (People v. Rish, supra, 163 Cal.App.4th at p. 1380 [appellate courts generally do not decide abstract questions].)
Carradine also urges us to decide this issue because he is concerned a future trial court addressing the same issue might be negatively influenced by the trial court's decision in this case. However, we conclude this prospect is unlikely as, under the Three Strikes Law, a qualifying prior conviction allegation must be pleaded and proved beyond a reasonable doubt in each case in which it is charged. (People v. Bowden (2002) 102 Cal.App.4th 387, 393.)
C. Blind Victim Enhancement Finding Must Be Reversed
Carradine contends, the Attorney General concedes, and we agree that the blind victim enhancement finding under section 667.9, subdivision (a), must be reversed. Grand theft from a person under section 487, subdivision (c), is not one of the enumerated crimes to which the enhancement may be applied. (§ 667.9, subd. (c).)
IV
DISPOSITION
The blind victim enhancement finding under section 667.9, subdivision (a), is reversed and the matter is remanded to the superior court to amend the abstract of judgment and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: BENKE, J., IRION, J.