Opinion
A128190
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. LABARAN K. MOHAMMED, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. H43001A)
Defendant was convicted following a jury trial of second degree robbery (Pen. Code, § 211), and given the upper term of five years in state prison. In this appeal he claims that his trial counsel was incompetent for failing to present expert opinion testimony on eyewitness identification evidence, and challenges the trial court's statement of reasons in support of the imposition of an upper term sentence for robbery. We conclude that defendant has not demonstrated inadequate assistance of counsel on appeal, and the trial court satisfactorily stated reasons for imposing the upper term sentence. We therefore affirm the judgment.
The jury found an alleged enhancement for personal use of a firearm during commission of the robbery (Pen. Code, § 12022.53, subd. (d)) not true.
STATEMENT OF FACTS
The victim of the burglary offense, Satnam Singh, testified that he was working as manager and cashier at Hayward Food and Liquor on Hesperian Boulevard at 5:45 p.m. on July 19, 2006, when a man he positively identified as defendant entered the store with a gun in his right hand. Defendant was wearing a white T-shirt and a cap. His face was partially covered with a cloth.
A store surveillance video of the robbery was played for the jury and described by Singh during his testimony.
Defendant pointed the gun at Singh and demanded that he "give him the money." Singh removed "all the twenty-dollar bills" and placed them on the counter. At defendant's command, Singh did the same with the rest of the bills in the cash register. As defendant was standing at the counter the cloth covering his face "gradually came down," so Singh glimpsed his eyes and nose on the right side of his face. Then, as defendant left the store with the money he "turned around" and Singh was able to see "almost the entire face."
Defendant left the store and entered the front passenger seat of a "black-colored car" parked outside. Another man was in the driver's seat. As the car drove away Singh observed and wrote down the license plate number. He called the owner of the store, and "dialed 911" to report the robbery.
Once the Hayward Police Department received a description of the suspect, the vehicle, and the vehicle license plate number from Singh, the car registration was traced to Jamal Williams at 4246 Miramonte Way in Union City. A Union City police officer drove to the 4246 Miramonte Way address at around 6:30 p.m., and observed a black vehicle parked in front of the residence that matched the description given by the victim. Two people were standing near the vehicle. After back-up officers arrived, a "felony car stop" was initiated, and the two occupants of the vehicle, defendant and Williams, were detained.
Hayward police officers arrived with Singh at the scene of the detention soon thereafter. Singh identified with certainty both the detained vehicle and defendant as the man who entered the store and robbed him. Singh was not able to identify Williams as the driver of the vehicle, although he testified that Williams "appeared" to be the same person who drove the black car. Cash in the amount of $235 was found in the glove compartment of the detained black car.
DISCUSSION
I. Trial Counsel's Failure to Present Expert Eyewitness Identification Testimony.
Defendant complains that his trial counsel "should have employed an expert witness" to challenge the victim's identification, which he characterizes as "suspect." He maintains that Singh's identification testimony was "decisive" in the case. Defendant adds that in light of the lack of any significant corroborating evidence, and the "questionable" nature of the victim's "cross-racial identification under the stress of being robbed at gunpoint, utilizing an identification expert witness was critically necessary" to bolster the defense of mistaken identification. Therefore, counsel's failure to "produce an identification expert to challenge" Singh's testimony "constitutes ineffective assistance of counsel under both the United States and California Constitutions."
The principles that govern defendant's claim of "constitutionally inadequate representation are settled." (In re Lucas (2004) 33 Cal.4th 682, 721.) "To establish a claim of inadequate assistance, a defendant must show counsel's representation was 'deficient' in that it 'fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] In addition, a defendant is required to show he or she was prejudiced by counsel's deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel's deficiencies, the result would have been more favorable to the defendant." (People v. Frye (1998) 18 Cal.4th 894, 979.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215; see also In re Jones (1996) 13 Cal.4th 552, 561.)
"In addition, the defendant must establish that counsel's actions were not based on a strategic decision. [Citation.] ' " '[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected." ' [Citations.]" (People v. Ramirez (2011) 193 Cal.App.4th 613, 621-622.) " ' "To sustain a claim of inadequate representation by reason of failure to call a witness, there must be a showing from which it can be determined whether the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him." ' [Citations.] Where the record is silent as to the reasons for particular actions of trial counsel, an appeal is not the proper vehicle for determining competency." (Id. at p. 622.) " 'Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.' [Citation.]" (People v. Lucero (2000) 23 Cal.4th 692, 728-729.)
The present case falls squarely within the category of those which fail to discount a tactical reason for trial counsel's decision to omit testimony from the defense case. The decision to present or object to admission of evidence is inherently tactical and will seldom establish incompetence. (People v. Stanley (2006) 39 Cal.4th 913, 955; People v. Scott (1997) 15 Cal.4th 1188, 1223; People v. Freeman (1994) 8 Cal.4th 450, 490-491; People v. Frierson (1991) 53 Cal.3d 730, 747.) Here, competent counsel may have decided that the expert testimony was subject to rebuttal or cross-examination that could prejudice the defense. The prospect of damaging rebuttal is a necessary consideration in trial counsel's decision whether to present defense evidence. (See People v. Gonzalez (2006) 38 Cal.4th 932, 960; In re Ross (1995) 10 Cal.4th 184, 212; People v. Gonzalez (1990) 51 Cal.3d 1179, 1251.) Counsel may have weighed the benefit of expert identification evidence against the possible disadvantages of focusing the jury's attention on the victim's testimony or reinforcing his identification of defendant as the robber.
The critical factor is this: on appeal, we do not know the content of the omitted testimony or the reason for counsel's failure to pursue it. We have no way of discerning from the record if counsel's actions were the result of lack of competence, or based on an informed tactical decision that the evidence may not have been ultimately beneficial to defendant. To find inadequate representation on appeal the record must affirmatively negate a conceivable, legitimate tactical purpose for counsel's omission. (People v. Scott, supra, 15 Cal.4th 1188, 1212-1213; People v. Lucas (1995) 12 Cal.4th 415, 442; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) We cannot speculate from the silent record before us, and without a definitive indication of inexcusable ignorance or oversight by defendant's attorney rather than a strategic consideration as the basis for the failure to offer the testimony, we cannot find counsel incompetent. (People v. Hart (1999) 20 Cal.4th 546, 630; People v. Williams, supra, 16 Cal.4th 153, 262; People v. Montiel (1993) 5 Cal.4th 877, 921; People v. Aubrey (1999) 70 Cal.App.4th 1088, 1105.)
The record before us further fails to establish prejudice. Counsel vigorously cross-examined the victim and effectively explored the inconsistencies in his testimony, with a pronounced emphasis on the vagaries of identification under the circumstances presented, including the suspect's partially obscured face, the "stressful" nature of the incident, the presence of the gun that diverted the victim's attention, the brief observation of defendant's appearance by the victim, and the fact that both defendant and Williams were "young," "African-American men." The court gave instructions to the jury that recited in detail the numerous pertinent factors to consider in evaluating the testimony of a witness (CALCRIM No. 226) and the reliability of the eyewitness identification of defendant (CALCRIM No. 315). The jury instructions covered much of the content of the expert testimony, and carried the weight of direction from the court. During closing argument defense counsel emphasized the inconsistencies in Singh's testimony, with particular reference to his mistaken report of the color and license plate number of the car. Counsel also reiterated the problematic attributes of the identification testimony: the victim was "shaken up" and "confused," he identified a "young man from a different race," the observation of the robber was "under very stressful conditions for a matter of seconds." In addition, counsel noted that Singh's identification at the scene of the detention, with only defendant and Williams present, was not the result of a "proper method of identification." Given the jury instructions and the effective cross-examination and argument by counsel, even without expert testimony defendant was not prevented from presenting a defense that the identification of him by the victim was mistaken. (People v. Goodwillie (2007) 147 Cal.App.4th 695, 725.)
Moreover, defendant has not demonstrated that trial counsel failed to consult an expert or that expert testimony of a favorable nature could have been presented at trial. (People v. Datt (2010) 185 Cal.App.4th 942, 952-953.) Nothing in the record indicates what additional exculpatory inferences may have been drawn if an expert had testified. (People v. Lewis & Oliver (2006) 39 Cal.4th 970, 996.)
In addition, "a trial court has wide discretion to admit or exclude expert testimony. " (People v. Page (1991) 2 Cal.App.4th 161, 187; People v. McDonald (1984) 37 Cal.3d 351, 373 (McDonald). Any proffered expert opinion testimony may have been subject to discretionary exclusion under Evidence Code section 352 as more prejudicial, confusing or distracting than probative, particularly in light of defense counsel's cross-examination of the eyewitness to challenge the accuracy of the identification and the instructions to the jurors on the factors they could consider when weighing the credibility of eyewitness testimony. (See People v. Cornwell (2005) 37 Cal.4th 50, 81; People v. Goodwillie, supra, 147 Cal.App.4th 695, 725-726.) We think the jury in the present case was keenly aware of any shortcomings of the witness's identification without expert testimony. In denying claims for habeas relief based on the failure of trial counsel to call an eyewitness expert to testify, the Ninth Circuit has found a lack prejudice on grounds that " 'skillful cross examination of eyewitnesses, coupled with appeals to the experience and common sense of jurors,' " along with instructions on the relevant factors that may undermine, " 'will sufficiently alert jurors to specific conditions that render a particular eyewitness identification unreliable.' " (Howard v. Clark (9th Cir. 2010) 608 F.3d 563, 574, quoting United States v. Christophe (9th Cir. 1987) 833 F.2d 1296, 1300; see also Rose v. Evans (9th Cir. 2011) 2011 U.S. App. Lexis 2902, **12, 2011 WL 490978, *4-5; Johnson v. Almager (C.D.Cal. 2011) 2011 U.S. Dist. Lexis 64599, *29-31.)
This was also not a case in which the eyewitness testimony was suspect due to critical discrepancies in the description or significantly delayed identification. (Cf. People v. Earle (2009) 172 Cal.App.4th 372, 403-405.) The California Supreme observed after McDonald, that a lack of consensus on the "consistency" and scientific validity of expert eyewitness identification testimony exists - rather, the field is beset by dispute and uncertainty - and most courts refuse to admit such testimony. (People v. Wright (1988) 45 Cal.3d 1126, 1142, fn. 13; see also People v. Johnson (1993) 19 Cal.App.4th 778, 787.) In the case before us the initial identification through a showup in the field, was made very shortly after commission of the crime, while perceptions were fresh, and the trivial inconsistencies in the testimony of the witness were convincingly explained. The identification was corroborated by tracing the license number of the vehicle given by the witness to a location near the crime, and the discovery of two suspects associated with the vehicle that generally matched the description given by the witness. Under the facts presented here, even if expert testimony had been offered by counsel, the trial court would not have abused its discretion by excluding the evidence under the test articulated in McDonald. (See People v. Jones (2003) 30 Cal.4th 1084, 1112; People v. Alcala (1992) 4 Cal.4th 742, 789-790; People v. Datt, supra, 185 Cal.App.4th 942, 952-953; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1305.) Thus, the lack of any showing of prejudice also defeats defendant's claim of ineffective representation.
As mentioned in State v. Henderson (N.J. 2011) 2011 N.J. Lexis 927, *88-89, an opinion by the New Jersey Supreme Court relied on by defendant at oral argument, the showup in the case before us was conducted well within the ideal two-hour time frame that has been found in studies not to heighten the risk of misidentification, "because 'the benefits of a fresh memory seem to balance the risks of undue suggestion.' "
II. The Imposition of the Upper Five-Year Term for Robbery.
We proceed to defendant's challenge to the trial court's imposition of a five-year upper term for the robbery conviction. Defendant claims that the trial court "failed to state any lawful reason for imposing the upper five-year prison term." He asserts that the court offered only a "vague lecture" to defendant rather than a proper statement of reasons. Defendant also suggests that the imposition of an upper term violated his "Sixth Amendment rights under Apprendi, Blakely, and Cunningham because the trial court's stated reason for imposing the upper term" may have been based on invalid aggravating circumstances. Defendant acknowledges that his trial counsel failed to object to the statement of reasons, but submits that if we find a forfeiture of the challenge his "attorney failed to provide effective assistance of counsel by not objecting to the trial court's insufficient statement of reasons for imposing the upper term." He requests that we remand the case to the trial court to "either articulate its reason for choosing the upper term or impose a lesser sentence."
Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. 270.
The trial court has a fundamental duty to state reasons justifying the sentencing choices it makes. (People v. Pierce (1995) 40 Cal.App.4th 1317, 1321.) However, "In making such sentencing choices, the trial court need only 'state [its] reasons (§ 1170, subd. (c)); it is not required to identify aggravating and mitigating factors, apply a preponderance of the evidence standard, or specify the 'ultimate facts' that 'justify[] the term selected.' (Compare Cal. Rules of Court, rule 4.420(e) with rule 4.406(a).) Rather, the court must 'state in simple language the primary factor or factors that support the exercise of discretion.' (Cal. Rules of Court, rule 4.406(a).)" (People v. Sandoval (2007) 41 Cal.4th 825, 850-851.)
California Rules of Court, rule 4.406(a) states: "If the sentencing judge is required to give reasons for a sentence choice, the judge must state in simple language the primary factor or factors that support the exercise of discretion or, if applicable, state that the judge has no discretion. The statement need not be in the language of these rules. It must be delivered orally on the record." California Rules of Court, rule 4.420(e) provides: "The reasons for selecting one of the three authorized prison terms referred to in section 1170(b) must be stated orally on the record."
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Here, although the trial court statement was a bit rambling and did not explicitly refer to aggravating factors, the reasons for the decision to impose an upper term are found in the record. The court referred to defendant's prior offenses and record of violent and serious crimes, his commission of the present offense while released on bail, the impact of the robbery on the threatened victim, and the fact that the failure of the jury to find the gun enhancement true reduced defendant's sentence. Consideration of defendant's use of a gun was not erroneous despite the finding by the jury on the gun use enhancement. In arriving at a sentencing decision, the "trial court may consider any 'criteria reasonably related to the decision being made,' " and need not "ignore evidence related to the offense of which the defendant was convicted, merely because that evidence did not convince a jury that the defendant was guilty beyond a reasonable doubt of related offenses." (People v. Towne (2008) 44 Cal.4th 63, 85-86.) [T]he trial court may consider a fact as aggravating even though the jury acquitted the defendant of charges based on that fact, and the fact need only be proven by a preponderance of the evidence. (Id. at pp. 83-89.)
We conclude that the trial court's statement of reasons for the choice of an upper term was adequate. Therefore, counsel cannot be faulted for failing to present an objection that would have been futile. (People v. Avena (1996) 13 Cal.4th 394, 421; People v. Lewis (1990) 50 Cal.3d 262, 289.) Finally, defendant was sentenced under the amended version of Penal Code section 1170, subdivision (b), which removed any claim of violation of his Sixth Amendment jury trial guarantee under Apprendi, Blakely, and Cunningham. (See People v. Pham (2009) 180 Cal.App.4th 919, 931; People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Accordingly, the judgment is affirmed.
Dondero, J. We concur: Marchiano, P. J. Banke, J.