Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Darlene E. Schempp, Judge. Affirmed. Los Angeles County Super. Ct. No. LA048562
Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Defendant Rigoberto Carranza timely appealed from his convictions on two counts of second degree robbery and one count of assault with a firearm. The jury found true the allegation a principal was armed in the commission of the offense and not true the allegation defendant personally used a firearm. Defendant, who was sentenced to six years in state prison, contends his counsel was ineffective because counsel did not request modified eyewitness instructions. We affirm.
FACTUAL BACKGROUND
I. The Robbery
Jose Lopez lived in an apartment building next to a commercial building on Hayvenhurst Avenue in Van Nuys. Lopez owned a swimming pool construction and repair company. Oswaldo Barbosa and Jose Luis Cortez worked for Lopez. On March 14, 2005, around 8:30 p.m., the three men returned to Lopez’s residence after a day’s work. Lopez was driving one of his three trucks. Barbosa and Cortez were in another one of the trucks. Upon arriving at his residence, Lopez made a U-turn into the parking lot of the commercial building and parked on the street. Lopez noticed a car in the parking lot, which was unusual as there were rarely cars in that lot after business hours. Lopez saw five men and one woman inside the car. Once Lopez parked, he moved his third truck, which had been parked on the street, to the gated parking lot of his apartment complex. Cortez and Barbosa parked on the street.
As Cortez and Barbosa walked on the sidewalk toward Lopez’s residence, someone called out “‘hey you.’” Barbosa looked over and saw a car in the commercial building’s lot; two people by the car were yelling “‘hey you.’” As Cortez and Barbosa did not recognize anyone, they kept walking. Shortly thereafter, Barbosa looked back and saw three Hispanic men, including appellant, running after him. The car had pulled out of the parking lot and started to follow them as well. The Hispanic men, who wore the baggy clothes associated with street gangs, yelled “‘where are you from?’” Barbosa responded “nowhere.” At this point, the Hispanic men were four to five feet on the left side of Barbosa and Cortez. Two of the three men took out guns. Appellant reached into Barbosa’s pocket and took about $40 in varying denominations. After searching Cortez’s pockets, appellant took Cortez’s cell phone.
After Lopez parked his truck in his parking space, he heard Cortez yell, “‘Jose.’” Lopez, whose parking space was next to the gate, looked over at the alley between the two parking lots. Lopez saw Cortez and Barbosa with appellant and another man standing next to them, pointing guns at them. As Lopez looked over, he heard Cortez say in Spanish, “‘That’s all I’ve got. That’s all I’ve got.’” Cortez sounded scared. The men with the guns saw Lopez, who was about five feet away. The men then pointed their guns at Lopez and shouted they were “from Van Nuys,” indicating a criminal street gang. Lopez responded, “‘So what?’” and “‘I’m going the call the police.’” Lopez opened the parking lot gate. At that point, appellant and the other robbers ran back to the car, which had pulled onto the street.
Lopez asked his employees if they had been robbed; when they replied they had, Lopez said “‘let’s chase them.’” The three men got into Lopez’s truck. Lopez noticed a car pull quickly out of the commercial lot and begin speeding. Barbosa noticed the car had one of its doors still open; he was certain it was the car the robbers had gotten out of and run back into. Lopez started to chase the car. As Lopez followed the car, Barbosa wrote down its license plate number and called the police. The car made a right turn onto a dead end one-way street; Lopez attempted to use his truck, which had a king cab, to block the car’s path. Because Lopez was not able to completely block the street, the car was able to get through. When the car drove into another dead end street, Lopez again attempted to block its path. The car was able to drive away by driving on the sidewalk. Because the men had called the police, they let the car get away.
II. The Arrest
Around 9 p.m., Officer Matthew Garza received the robbery call, which included the license plate number. Using the computer in his patrol car, Garza accessed DMV records. As the title to the car was in the process of being transferred, Garza obtained the addresses of both the current owner and the person to whom the car was being sold. The current owner lived on Fillmore Street in Pacoima. At around 10:30 p.m., Garza drove to the Pacoima address. A gray or silver Chevy Corsica with a matching license plate number was parked in front of the house. Several trailers and abandoned cars were in the back of the property. Within half an hour, seven or nine other officers were at the address.
A search of the house did not produce any suspects. The officers then searched the trailers and found appellant, two other Hispanic males and one Hispanic female, crouched down or “curled up in balls” on the floor of the trailer. The men were wearing baggy clothing. The officers recovered ten $100 bills hidden inside stereo speakers as well as smaller denominations from the four suspects.
Officers took Cortez to the Fillmore location for a field show-up involving the people found in the trailer as well as the occupants of the front house. As a result of the show-up, the four suspects from the trailer, including appellant, were arrested.
III. Court Identifications
At trial, Lopez identified appellant as one of the two men standing next to Cortez and Barbosa pointing guns at them. Though it was not particularly bright at the robbery scene, there was a streetlight near the apartment complex’s parking lot. Lopez, who was standing five feet away from the men when he saw them, saw the men’s faces clearly. Lopez also identified appellant at the preliminary hearing, which occurred less than two months after the robberies. Lopez testified that when he identified appellant at the preliminary hearing, he was “probably 80 percent” certain of his identification. After the hearing, appellant’s mother approached Lopez and asked him to forget her son. Lopez replied he would not because, “if they shot us, they will kill us.” Because of that exchange, Lopez was 90 percent certain of his identification at trial.
Barbosa identified appellant at the preliminary hearing. At trial, Barbosa identified the Chevy Corsica as the car that appellant and the others got out of and returned to after the robberies.
At trial, Barbosa identified appellant as the man who took the money from his pocket and the cell phone from Cortez’s pocket. During the robbery, appellant was four to five feet away from Barbosa, close enough to reach into his pockets and take his money. The lighting in the commercial parking lot was such that when the men were yelling, Barbosa could see their faces well enough to determine he did not know them.
Appellant presented no evidence on his behalf.
DISCUSSION
Appellant contends his counsel’s failure to request modified eyewitness jury instructions amounted to ineffective assistance of counsel requiring reversal. The court gave CALJIC No. 2.92, the standard eyewitness instruction. Appellant posits his counsel was ineffective for not also requesting the court to instruct on certain factors listed in CALCRIM No. 315.
I. Ineffective Assistance
Generally, whether counsel’s performance was inadequate and whether such inadequacy prejudiced the defense are subject to de novo review. (In re Resendiz (2001) 25 Cal.4th 230, 248-249.) “This determination [if counsel’s performance fell below an objective standard of reasonableness] generally must be made with deference to avoid the dual pitfalls of second-guessing counsel’s tactics and chilling vigorous advocacy.” (People v. Karis (1998) 46 Cal.3d 612, 657.) “[A] reviewing court will reverse a conviction [on direct appeal] on the ground of inadequate counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’” (People v. Frye (1998) 18 Cal.4th 894, 979-980.)
II. Instructions
A. Identity Testimony
Barbosa testified he did not go to the field show up because he was nervous, shocked and insecure and Cortez got a better view of the robbers. Barbosa, who was not facing the robbers, turned around and got a look at the robbers in three or four “quick flashes” within about ten seconds.
Barbosa’s memory of the event was better at the May 2005 preliminary hearing because he had had a chance to calm down; he was not sure if appellant was the one who took the money from him. At trial, Barbosa testified appellant was the one who removed money from his pocket. Barbosa did not notice any forehead scars, facial hair or pierced ears as part of appellant’s description or recall what appellant had been wearing.
When Lopez saw the gray car with the Hispanic men and woman, he saw them for only 10 seconds. When Lopez looked through the iron fence surrounding his apartment parking lot, he saw two men pointing guns at Barbosa and Cortez. The men then pointed their guns at Lopez, who was five feet away; appellant was one of the men with a gun. Lopez also identified appellant as one of the men with a gun at the preliminary hearing. The night of the robbery, Lopez also told police he could not identify anybody because he never saw the assailants face-on. Lopez saw only two robbers.
Neither Barbosa or Lopez participated in the field show-up.
During deliberations, the jury requested readback of: “I.D. of defendant [¶] Where car was when spotted it [¶] 1 Description of the chase 2 When he noticed the car look initially” and “as to a I D from people behind a 2 way mirror.”
B. CALJIC No. 2.92 (the instruction given):
Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given eyewitness testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including, but not limited to, any of the following:
The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;
The stress, if any, to which the witness was subject at the time of the observation;
The witness ability, following the observation, to provide a description of the perpetrator of the act;
The extent to which the defendant fits or does not fit the description of the perpetrator previously given by the witness;
The cross racial or ethnic nature of the identification;
The witness’ capacity to make an identification;
Evidence relating to the witness’ ability to identify other alleged perpetrators of the criminal act;
Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;
The period of time between the alleged criminal act and the witness’ identification;
The extent to which the witness is certain or uncertain of the identification;
Whether the witness’ identification is in fact the product of his own recollection; and
Any other evidence relating to the witness’ ability to make an identification.
The jury was also instructed with CALJIC No. 2.91 on the prosecution’s burden to prove identity beyond a reasonable doubt and CALJIC No. 2.20 on believability of witness, which includes the factor of “[t]he extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified.”
C. CALCRIM 315 (the factors appellant claims should have been added):
1. How well could the witness see the perpetrator?
2. What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation?
3. How closely was the witness paying attention?
4. Did the witness give a description and how does that description compare to the defendant?
5. How much time passed between the event and the time when the witness identified the defendant?
6. Was the witness asked to pick the perpetrator out of a group?
7. Did the witness ever fail to identify the defendant?
8. Did the witness ever change his or her mind about the identification?
9. How certain was the witness when he or she made an identification?
10. Were there any other circumstances affecting the witness’s ability to make an accurate identification?
D. Application
This case is not one where defense counsel did not request eyewitness instructions; rather appellant’s complaint is that counsel did not request an eyewitness instruction that pinpointed the factors casting doubt on the identifications of appellant, i.e., counsel did not request additional factors be added to the standard instruction. Appellant argues that factors 1 through 3 in the CALCRIM instruction are more specific than those described in CALJIC and would have directed the jurors to think about the many facts of this case that cast doubt on his identification such as where the witnesses were standing and the distance they were from the robbers, what direction they were facing, the lighting conditions, how much time they had to observe the robbers, what obstructions were in play, whether they were paying attention, and how well they could see the perpetrators. Appellant also argues that factors 6 and 7 are especially relevant as Lopez and Barbosa did not participate in the field show up and told the police they did not get a “face-on” look at the suspects and their identification were unreliable as they likely influenced one another.
Barbosa testified that when an officer said he was going to take Barbosa to view the suspects through a two-way mirror, he (Barbosa) told the officer he could identify the suspects.
The additional factors 1-3 and 6 suggested by appellant are duplicative of the factors listed in CALJIC with slightly different wording and somewhat expanded examples of circumstances. Appellant is not entitled to duplicative instructions. (See People v. Griffin (2004) 33 Cal.4th 536, 591; People v. Romero (2007) 149 Cal.App.4th 29, 42.) Factor 7 is irrelevant as neither witness ever failed to identify appellant.
Moreover, appellant’s defense was mistaken identity and his counsel addressed the circumstances of the identifications (i.e., the weaknesses) in closing argument. Counsel noted Barbosa could not provide any identification of appellant’s facial features, Lopez was not 100 percent sure of his identification, there were inconsistencies between Barbosa’s preliminary hearing testimony and his trial testimony, the lighting was not good, the robbery occurred in a brief period of time, the identifications were made after appellant’s arrest, Lopez and Barbosa told different stories, the facts surrounding the gray car were suspect and nothing was found in the trailer connecting appellant to the crime scene. Counsel also addressed other perceived inconsistencies in the testimony.
As noted by the court in People v. Wright (1988) 45 Cal.3d 1126, 1143, a case cited by appellant: “We conclude that the listing of factors to be considered by the jury will sufficiently bring to the jury’s attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. The instruction should list the applicable factors in a neutral and non argumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness. It should list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative.” (Fn. & italics omitted.)
Counsel was not ineffective for failing to request additional eyewitness instructions. Defense counsel might have decided that the CALJIC instructions were adequate and that further instructions were not needed. We do not want to second guess counsel for not requesting eyewitness instructions with even more factors.
Additionally, even if additional instructions had been given, it is not reasonably probable the jury would have returned a verdict more favorable to appellant. (See People v. Fosselman (1983) 33 Cal.3d 572, 584.) Besides the two identifications, the gray car connected appellant to the robbery. Even though defense counsel questioned whether the car which Lopez and his employees followed was the car the robbers left in, twice when Lopez tried to block the car, it evaded him. When police went to the address connected with the license plate number they received from Barbosa, they found appellant and others curled up in a ball on the floor of one of the trailers located at that address. The suspects matched the general description of the robbers as Hispanic and dressed in baggy clothes. Appellant was arrested after the field show-up presumably as a result of being identified by Cortez. Furthermore, appellant’s mother asked Lopez to forget appellant which caused Lopez to be more certain of his identification.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. ZELON, J.