Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA089964. Philip H. Hickok, Judge.
Robert Franklin Howell, 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, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Jovanie Prado, convicted of first degree murder (Pen. Code, § 187), appeals his conviction on the basis that it violated due process because it was based on unreliable eyewitness testimony, and also because he alleges that the court erred in instructing the jury with CALJIC No. 2.92. On appeal, the Attorney General requests that we order two neglected sentence enhancements to be imposed and stayed. We affirm the judgment and order the abstract of judgment to be modified with respect to the sentence enhancements.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Prado shot and killed Miguel Yaber. Witness Eric Menchaca identified Prado numerous times as present at the shooting. First, soon after the shooting, he identified Prado from a photographic lineup and identified Prado’s car from a photograph as the car he had seen that night. Then, at the preliminary hearing, Menchaca testified that Prado was the shooter. At trial, however, he refused to “pinpoint somebody” and identified Prado as the person he saw exit the car immediately before the gunshots, then run away immediately after the shots were fired.
Witness Richard Viramontes recognized a photograph of Prado’s car as depicting the car he saw the night of the shooting and also identified Prado as the shooter from a photographic lineup, stating, “It looks like him.” Viramontes was “about 50 percent” sure that the person in the photograph was the shooter. At the preliminary hearing, Viramontes testified that he was 80 percent sure that the person whose photo he selected was the shooter and identified Prado in court as the shooter. At trial, Viramontes testified that he did not recognize anyone in court as the shooter.
Witness Martin Campos was unable to identify the shooter but identified a photograph of Prado’s car as the one he saw the night of the shooting.
Prado was convicted of first degree murder, and the jury also found true firearm enhancement allegations under section 12022.53, subdivisions (b), (c), and (d). Prado appeals.
DISCUSSION
I. Eyewitness Identification Testimony
Prado argues that the eyewitness identifications of himself as the shooter were the result of unnecessarily suggestive procedures that resulted in a substantial likelihood of misidentification. First, he contends that the photographic six-pack lineup used by the police was unnecessarily suggestive because Prado’s photograph was in the center of the top row of photographs, and above Prado’s photograph was the letter “A.” Second, he alleges that the use of photographs of Prado’s car to obtain Menchaca’s identification of Prado was unnecessarily suggestive because the police allegedly told Menchaca that the car belonged to the shooter and concealed details about the car that conflicted with Menchaca’s description of the car. Third, he claims that the witnesses’ identification testimony was unreliable under the totality of the circumstances and that the use of improperly suggestive identification procedures produced a substantial likelihood of misidentification. Fourth, Prado argues that the witnesses’ in-court identification testimony should also have been excluded because the pre-trial identification procedures were unduly suggestive and there was no showing that the in-court identifications came from an independent source.
Prado did not object to any of this evidence. Our Supreme Court has recently emphasized that “‘“questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.]”’ [Citations.]” (People v. Williams (2008) 43 Cal.4th 584, 620.) “Evidence Code section 353, subdivision (a), provides that a judgment shall not be reversed because of the erroneous admission of evidence unless there was a timely objection ‘so stated as to make clear the specific ground of the objection....’ ‘The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal. [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 979, superseded on other grounds by § 190.41.) Moreover, “‘The objection requirement is necessary in criminal cases because a “contrary rule would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.’” [Citation.]’ [Citations.]” (Williams, at p. 620.) Prado’s failure to object to or seek the exclusion of this evidence in the trial court precludes him from challenging its admission on appeal.
Prado argues that in the event he is precluded from challenging on appeal the admission of the eyewitness identification testimony, he was denied the effective assistance of counsel and the judgment must be reversed on that basis. “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.” (People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).)
“In order to prevail on [an ineffectiveness] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.) “If the record on appeal 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 there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.” (Carter, supra, 30 Cal.4th at p. 1211.) Prado has not shown that defense counsel was asked for an explanation but failed to provide one. The record before us does not suggest that counsel’s performance was obviously inadequate or that there could be no satisfactory explanation for his failure to object to the evidence in question. Accordingly, the issue is more properly one for a petition for collateral relief, and we decline to reverse his conviction on direct appeal.
II. CALJIC No. 2.92
Without any objection by Prado, the trial court instructed the jury with CALJIC No. 2.92, the former standard jury instruction on eyewitness identification testimony. On appeal, Prado challenges the portion of that instruction stating that the jury may consider the “extent to which the witness is either certain or uncertain of the identification.” (CALJIC No. 2.92.) Citing various journal articles and treatises, he complains that scientific studies show a witness’s certainty about an identification is not a reliable predictor of accuracy. He asserts that the instruction inappropriately reinforced a common misconception about eyewitness identification and improperly bolstered the People’s case, in violation of his due process and fair trial rights. We reject his contentions.
The California Supreme Court has approved CALJIC No. 2.92 in cases in which witness identification is an issue. (People v. Wright (1988) 45 Cal.3d 1126, 1141-1143.) The Supreme Court in Wright explained that “a proper instruction on eyewitness identification factors should focus the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence. [¶] The instruction should not take a position as to the impact of each of the psychological factors listed.” (Wright, supra, at p. 1141.) Wright expressly approved CALJIC No. 2.92, commenting that when modified to fit the evidence at trial, CALJIC No. 2.92 “usually provide[s] sufficient guidance on eyewitness identification factors.” (Id. at p. 1141.) The weight to be given and effect of any particular factor was best left to “argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. [Footnote.]” (Id. at p. 1143.) The Wright majority rejected the dissent’s suggestion that inclusion of these factors without further explanation, including the certainty factor, rendered the instruction deficient. (Id. at p. 1141; id. at pp. 1157-1159 [dis. opn. of Mosk, J.].) Subsequently, in People v. Johnson (1992) 3 Cal.4th 1183, 1230-1232, the court rejected the contention that the certainty factor should have been excised because the defendant had offered the uncontradicted testimony of an expert that a witness’s certainty does not positively correlate with accuracy. The inclusion in CALJIC No. 2.92 of the witness’s certainty as a factor for jury consideration is not error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 561-562; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303, disapproved on another ground in People v. Martinez (1995) 11 Cal.4th 434, 452 and People v. Levesque (1995) 35 Cal.App.4th 530, 539.)
III. Firearm Use Enhancements
The jury found true the firearm allegations under section 12022.53, subdivisions (b), (c), and (d). The trial court imposed a 25-year-to-life enhancement term based on the true finding under section 12022.53, subdivision (d), but took no action on the findings made under subdivisions (b) and (c) of that statute. As the Attorney General points out, the Supreme Court has “construe[d] section 12022.53 to require that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1123.)
Prado argues that this issue has been waived by the People’s failure to object and to appeal, but the failure to impose the sentence mandated by law results in an unauthorized sentence subject to correction on appeal even absent an objection in the trial court. (People v. Bradley (1998) 64 Cal.App.4th 386, 391 [“The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal].) Accordingly, the abstract of judgment must be modified to reflect that the enhancements under section 12022.53, subdivisions (b) and (c) are imposed and stayed.
DISPOSITION
The judgment is modified to impose and stay the sentence enhancements under Penal Code section 12022.53, subdivisions (b) and (c). The clerk of the superior court is ordered to prepare an amended abstract of judgment as set forth in this opinion and to forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.