Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge, Los Angeles County Super. Ct. No. VA086577
Maxine Weksler, 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, Lawrence M. Daniels and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Hugo Ivan Sanchez appeals from the judgment entered after his conviction by a jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and shooting at an occupied vehicle (§ 246) and true findings by the jury on related firearm and gang enhancements. Sanchez, who was 16 years old at the time of the shooting, was tried as an adult and sentenced to 40 years to life in state prison. Although he raises a variety of arguments in this appeal, Sanchez’s principal challenge concerns the testimony of two of the three occupants of the targeted car identifying him as the shooter. We reject his contention the identifications were made under unduly prejudicial circumstances and, with the exception of the trial court’s denial of his motion for discovery of law enforcement personnel records (Pitchess motion), affirm his conviction. We remand for the limited purpose of reconsideration of the discovery motion.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Shooting
On the evening of November 20, 2004 Victor Lopez, Rodrigo Valdez and Uriel del Campo were driving to a party in Bell Gardens in Lopez’s Toyota Camry. Lopez drove; Valdez sat in the front passenger seat giving directions; and del Campo sat in the rear seat behind the driver. Unfamiliar with the area, they drove slowly along a residential street believing they were near the party’s location. A light-colored sports utility vehicle (SUV) pulled up next to them. Thinking the occupants of the SUV were looking for the same party, Valdez told Lopez to lower his window and leaned forward to look at the occupants of the SUV. Someone in the SUV asked, “Where are you from?” Lopez and Valdez indicated they were not in a gang. They then heard someone say something that sounded like “Wilmore Trece” and saw the driver of the SUV point a gun at the Camry. The driver pulled the trigger twice; but the gun jammed, making only a clicking sound. As Lopez started to pull away, the gun fired three times. The first shot shattered the Camry’s rear window next to del Campo; the second shot hit the passenger headrest behind Valdez; and the third shot hit Lopez in the right eye as he turned to look at the SUV.
As the SUV pulled away, Valdez saw a logo identifying the SUV as an Infiniti “Q” series. He moved Lopez to the rear seat and started off to find a hospital. Not knowing the area, he pulled into a grocery store parking lot and called the police. Officers from the Bell Gardens Police Department responded within minutes, and Lopez was taken to the hospital. Lopez lost the use of his right eye as a result of the shooting.
2. The Identification of Sanchez as the Shooter
After Lopez was taken to the hospital, the police interviewed Valdez and drove him to find the location of the shooting. Although Valdez led them to a street he believed was the site of the shooting, the officers were unable to find any physical evidence. Valdez described the shooter as a young male Latino with a shaved head and a pointed nose. The police then drove Valdez to the station to look at photographs of possible suspects. Based on Valdez’s recollection the occupants of the SUV had identified themselves as something like “Wilmore,” Michael Cox, II, a Bell Gardens detective, showed Valdez two stacks of field identification cards containing photographs of members of the Witmer Street gang, the only gang in Bell Gardens bearing a name similar to “Wilmore.” Each stack contained approximately 10 to 15 cards. Halfway through the first stack, Valdez identified a photograph of Sanchez as looking like the shooter, but stated he would prefer to see him in person to be sure.
Detective Cox later testified he read Valdez an admonition that the cards might or might not include a photograph of the shooter. In addition to photographs taken in the field by the officer completing the card, each field identification card contained the name, address, age and moniker of the person in the photograph.
One week later, after he had been released from the hospital, Lopez was interviewed at the police station by Detective Cox and shown the same field identification cards Valdez had seen. Lopez testified at trial he was not told the shooter’s photograph was included in the set of cards, an assertion corroborated by Detective Cox, who testified he gave Lopez the same admonition he had previously given Valdez. Lopez also identified Sanchez as the shooter based on a second field identification card (with a different photograph from the one Valdez had recognized) recording another police encounter with Sanchez. Like Valdez, Lopez acknowledged he had some doubt and stated he would prefer to see the individual in person.
Later that same day, Detective Cox drove by the address for Sanchez recorded on the field identification card and observed a silver Infiniti QX4 SUV parked in the driveway of the home. He arranged for Valdez and Lopez to come to the police station and for each to be driven separately from the station to the residence by Detective Mark Cobian to view the SUV parked in the driveway. Although it was late in the evening by the time Valdez and Lopez saw the SUV, they each identified it as the one involved in the shooting.
About an hour later, Detective Cox located Sanchez at his residence and asked Valdez and Lopez to return to the residence to view him. Detective Cobian, who testified he obtained written advisement forms from Valdez and Lopez before the field showup, drove them separately to view Sanchez, who was not handcuffed and stood on the sidewalk between Detective Cox and another police officer. Once Detective Cobian illuminated Sanchez with his headlights, Lopez stated, “That’s the person who shot me.” Valdez also identified Sanchez as the shooter, noted his pointed nose, and said he was “101 percent sure,” although he admitted at trial the police had already told him they “got the guy” and just wanted him to make sure.
3. The Information and Trial
Sanchez was arrested and charged with five felony counts: Attempted murder of Lopez (§§ 664, 187, subd. (a)) (count 1); assault with a firearm on three different victims (§ 245, subd. (a)(2)) (counts 2, 3 and 4); and shooting at an occupied vehicle (§ 246) (count 5). A gang enhancement was specially alleged as to each count (§ 186.22, subd. (b)(1) & (4)). The information also specially alleged as to count 1 that Sanchez had personally and intentionally discharged a firearm causing great bodily injury to Lopez (§ 12022.53, subds. (b), (c), (d) & (e)(1)); as to counts 1 and 2 that Sanchez had personally inflicted great bodily injury on Lopez (§ 12022.7, subd. (a)); and as to counts 2, 3 and 4 that he had personally used a firearm (§ 12022.5, subds. (a) & (d)).
Sanchez’s first trial ended in a mistrial after the jury was unable to agree on a verdict. At his retrial Sanchez’s counsel effectively impeached Lopez, whose identification of Sanchez was undermined by his poor recollection of the evening of the shooting and his admission he was not able to see the shooter. Valdez, however, proved more consistent in his testimony and, except for minor inconsistencies, remained adamant in his identification of Sanchez as the shooter. Detectives Cox and Cobian testified neither had influenced the identifications made by Lopez and Valdez.
Sanchez did not testify on his own behalf, did not offer expert testimony on the unreliability of eyewitness identification, and did not offer any evidence in his defense except through cross-examination of the People’s witnesses.
The jury found Sanchez guilty on counts 2 (assault with a firearm against Lopez) and 5 (shooting into an occupied vehicle) and also found true the gang and weapon enhancements as to those counts. It was unable to reach a verdict on count 1 (attempted murder of Lopez) or counts 3 and 4 (assault with a firearm against Valdez and del Campo). The court declared a mistrial as to those counts; and, upon the prosecutor’s agreement to dismiss those counts on condition the sentences in counts 2 and 5 were valid, the court dismissed them. The court sentenced Sanchez to an indeterminate term of 15 years to life on count 5, in light of the criminal street gang enhancement, plus a consecutive indeterminate term of 25 years to life as the enhancement for intentionally discharging a firearm causing great bodily injury. The sentence on count 2 was stayed pursuant to section 654.
Section 186.22, subdivision (b)(4), provides, “Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as . . . . [¶] . . . [¶] (B) Imprisonment in the state prison for 15 years, if the felony is . . . a felony violation of Section 246 [shooting at an inhabited dwelling house or vehicle] . . . .”
CONTENTIONS
Sanchez contends the trial court erred in denying his Pitchess motion; his due process rights were violated by the use of unduly suggestive identification procedures; the eyewitness identification instruction given by the court (CALJIC No. 2.92) was unconstitutional; the unreliable identification evidence was insufficient to sustain his conviction; the detectives’ gang testimony lacked foundation, improperly invaded the province of the jury and was unduly prejudicial; he received ineffective assistance of counsel; the sentence of 40 years to life was cruel and unusual punishment for a juvenile; the enhancement under section 12022.53, subdivision (d), was not properly alleged in the information; and the imposition of the enhancement on count 5 was barred by section 654, violated his due process rights and constituted double jeopardy.
DISCUSSION
1. The Trial Court Improperly Denied Sanchez’s Pitchess Motion
“For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc) (fn. omitted); see Pitchess v. Superior Court (1974) 11 Cal.3d 531.) To balance the defendant’s right to discovery of records pertinent to his or her defense with the peace officer’s reasonable expectation that his or her personnel records will remain confidential, the Legislature has adopted a statutory scheme requiring a defendant to meet certain prerequisites before his or her request may be considered. (See §§ 832.5, 832.7 & 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].) Specifically, a defendant seeking discovery of a peace officer’s confidential personnel record must file a written motion describing the type of records or information sought (Evid. Code, § 1043) and include with the motion an affidavit demonstrating “good cause” for the discovery and the materiality of such evidence relative to the defense. (Mooc, at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) The information must be requested with “sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information.” (Mooc, at p. 1226.)
Once the trial court concludes the defendant has satisfied these prerequisites, the custodian of records is obligated to bring to court all documents “potentially relevant” to the defendant’s motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court must then examine the information in chambers, outside the presence of any person except the proper custodian “and any other persons as the person authorized to claim the privilege is willing to have present.” (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see Warrick, supra,35 Cal.4th at p. 1019.) Subject to certain statutory exceptions and limitations, the trial court must then disclose to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’” (Mooc, at p. 1226; Warrick, at p. 1019.) “A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial court must exclude from discovery: “(b)(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045; see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
Sanchez challenges the trial court’s denial of his motion on the ground he had failed to establish good cause to review the records of Detectives Cox and Cobian. He argues he satisfied the “relatively low threshold” for establishing good cause for an in camera review. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83-84; Warrick, supra, 35 Cal.4th at p. 1019.)
We agree. The Supreme Court made clear in Warrick, in addition to a specific description of the discovery sought and a demonstration of a logical link between the defense proposed and the pending charge, good cause for Pitchess discovery requires only that the defendant present a factual scenario of officer misconduct “that might or could have occurred[,]” explaining that “a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language.” (Warrick, supra, 35 Cal.4th at pp. 1021, 1026.) The Court also held that, depending on the circumstances of the case, the defendant’s factual scenario “may consist of a denial of the facts asserted in the police report.” (Id. at pp. 1024-1025.) Although a factual scenario need not be reasonably probable or credible, and although the denial of facts in a police report sometimes may establish the required plausible factual foundation, a sufficient plausible scenario must present “an assertion of police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Id. at pp. 1024-1025, 1026.)
In support of Sanchez’s motion, his counsel submitted a declaration stating, in part, he believed Detectives Cox and Cobian had pushed the victims to identify Sanchez during their review of the field identification cards and at the subsequent show-up at Sanchez’s house. Counsel noted contradictions between the police reports and the victims’ testimony at the preliminary hearing supporting the inference they had been subjected to improper influence in identifying Sanchez. He also stated he was “personally aware of numerous acts of moral turpitude” by Detective Cobian and had been informed Detective Cox was on administrative leave from the department because of accusations of misconduct. The prosecutor opposed the motion by pointing out both Lopez and Valdez had testified they had not been told to identify Sanchez and that minor inconsistencies were not sufficient to justify granting the motion.
In denying Sanchez’s showing of good cause to warrant in camera review of Detectives Cox’s and Cobian’s records, the trial court stated, “It’s kind of a far reach, isn’t it? I think that maybe the cops told the witnesses to lie with nothing in the prelim transcript to back that up? . . . [¶] . . . Therefore, there’s some evil conspiracy among the cops to lie, from what you tell me. That seems to be a pretty far reach. The Pitchess motion is denied.”
Although the foundation for Sanchez’s claim of police misconduct is less than overwhelming, in light of the minimal standard enunciated in Warrick, the trial court should have granted the motion and conducted an in camera review of the detectives’ personnel records to determine if there was any relevant material responsive to allegations of dishonesty and improper coaching of witness testimony (phrased in the motion as “acts involving . . . falsification of testimony, fabrication of evidence, false police reports [or] perjury.” Plausibility, not ascertained fact, is the linchpin under Warrick; and it is conceivable the tentative identifications made by Lopez and Valdez were improperly reinforced by the detectives at some point in the investigation. By the time of trial, Valdez’s certainty in his identification of the SUV and Sanchez was crucial to Sanchez’s conviction. The declaration therefore “establish[ed] not only a logical link between the defense proposed and the pending charge, but also [] articulate[d] how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Warrick, supra, 35 Cal.4th at p. 1021.)
To the extent Sanchez’s motion sought discovery of information from the personnel files concerning “acts involving illegal arrest [or] search and seizure without probable cause,” it was properly denied.
The plausibility of the scenario posed by Sanchez is corroborated by Valdez’s admission at trial he knew, en route to the showup, the detectives had the perpetrator and wanted him to make sure of his identification. Certainly, Valdez was under the force of expectation to identify Sanchez as the shooter, whether or not it ultimately affected his identification.
Because the trial court erred by denying Sanchez’s pretrial Pitchess motion in its entirety without the required in camera review, we conditionally reverse his judgment of conviction and remand the matter to resolve the issue of prejudice following the procedure set forth in People v. Hustead (1999) 74 Cal.App.4th 410, 419 and People v. Johnson (2004) 118 Cal.App.4th 292, 296: (1) The trial court must conduct an in camera inspection of the requested personnel records for relevance; (2) if the trial court’s inspection on remand reveals no relevant information, the trial court must reinstate the judgment of conviction; and (3) if the inspection reveals relevant information, the trial court must order disclosure to Sanchez, allow him an opportunity to demonstrate prejudice and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If Sanchez is unable to show any prejudice, the conviction and sentence are to be reinstated.
2. The Eyewitness Identification Procedures Were Not Unduly Suggestive Under the Totality of the Circumstances
Due process requires the exclusion of identification testimony “if the identification procedures used were unnecessarily suggestive” and “the resulting identification was also unreliable.” (People v. Yeoman (2003) 31 Cal.4th 93, 123.) “[T]he burden is on the defendant to establish that the [eyewitness’s] confrontation resulted in such unfairness that it infringed his right to due process.” (People v. Hunt (1977) 19 Cal.3d 888, 893.)
“‘The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.’” (People v. Ochoa (1998) 19 Cal.4th 353, 412.)
“‘It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo. [Citations.]’ [Citations.] Factual determinations by the trial court will be upheld on appeal if supported by substantial evidence.” (People v. Nguyen (1994) 23 Cal.App.4th 32, 38.)
Sanchez challenges both phases of his identification by Valdez and Lopez: the showing of selected field identification cards without the safeguards of a photographic lineup utilizing similarly featured persons for comparison and the subsequent field showup in which Sanchez was the lone young Hispanic male surrounded by police and bearing the gang tattoo “Witmer.”
Notwithstanding Sanchez’s complaint, we see nothing fundamentally wrong with allowing Valdez to examine the photographs of known Witmer gang members to identify the shooter. There is no suggestion in the record the Bell Gardens detectives had any preconceived notion of the shooter’s identity -- let alone targeted Sanchez -- when Valdez reviewed the field identification cards. (Detective Cox specifically denied any pre-identification opinion of the perpetrator’s identity.) Moreover, the circumstances were indeed exigent: The shooting had just occurred, and Valdez’s recollection was fresh. (See People v. Poon (1981) 125 Cal.App.3d 55, 76-77, disapproved on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292 [identification made by victim reviewing book of mug shots on day of assault not unduly suggestive when police did not know suspect’s identity).
As Detective Cox explained at trial, the Bell Gardens Police Department utilizes a photographic lineup (or “six-pack”) only when the suspect has already been identified. The six-pack is then used “to determine if [the witness] is a good witness or the victim knows who violated them . . . .”
The same cannot necessarily be said about Lopez’s identification of Sanchez from the field identification cards. Lopez denied he knew he would find a photograph of the shooter in the field identification cards, but that assertion is questionable in light of his close friendship with Valdez. Indeed, it is possible Lopez had already heard the name Sanchez from Valdez, as the card Valdez identified contained Sanchez’s name and address. Based on Detective Cox’s explanation of the guidelines for use of a six-pack photographic lineup, one could have easily been prepared for Lopez’s interview. Unfairness, however, must be proved as a “‘demonstrable reality,’ not just speculation.” (People v. Contreras (1993) 17 Cal.App.4th 813, 819.) Lacking any evidence of pressure or undue influence and with affirmative denials of such influence, the failure to utilize a photographic six-pack was harmless under the totality of the circumstances.
As to the field showup, however, more than 40 years ago the United States Supreme Court acknowledged, “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” (Stovall v. Denno (1967) 388 U.S. 293, 302 [87 S.Ct. 1967, 18 L.Ed.2d 1199].) Since then, courts have struggled to identify the circumstances under which a “single person showup,” as it has become known, is constitutionally permitted.
By its very nature, a single-person showup identification involves one person (the suspect) who is often surrounded by the trappings of police activity (officers, handcuffs, and even the car, if any, the person was stopped in). Nonetheless, a “‘“single person showup” is not inherently unfair,’” and consequently need not, absent unusual circumstances, be excluded from the presentation of evidence on due process grounds. (People v. Floyd(1970) 1 Cal.3d 694, 714 [single person showup identification procedure conducted at the jail within several hours of a robbery did not violate due process], overruled on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) In fact, “single-person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witness’s mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended.” (In re Carlos M. (1990) 220 Cal.App.3d 372, 387.)
See also In re Richard W. (1979) 91 Cal.App.3d 960, 969-970 [no due process violation when witness identified suspect shortly after burglary while suspect was handcuffed and seated in the back of a patrol car]; People v. Savala (1981) 116 Cal.App.3d 41, 49 [no due process violation where showup procedures were “factually similar” to those in Richard W.]; People v. Contreras (1993) 17 Cal.App.4th 813, 820 [police officer “[t]elling a witness suspects are in custody . . . is not impermissible” in context of identification procedure].
However, while a strong public policy favors expeditious police work (People v. Cowger (1988) 202 Cal.App.3d 1066, 1072), the Supreme Court has made it clear the out-of-court identification must be necessary. (People v. Ochoa, supra, 19 Cal.4th at p. 412; cf. Stovall v. Denno, supra, 388 U.S. at p. 295 [permissible out-of-court identification occurred in the hospital room of a sole witness to a murder as she lay in critical condition from 11 stab wounds].)
The showup in this case cannot be considered necessary. Nothing prevented the officers from arresting Sanchez and later presenting him to Valdez and Lopez in the context of a live or photographic lineup using more protective mechanisms to avoid undue suggestiveness. On the other hand, the showup here differs significantly from those used in cases invalidating such procedures because Valdez and Lopez had each already identified Sanchez from the field identification cards Bell Gardens police had gathered while investigating the Witmer street gang. Generally, a pretrial identification procedure is deemed unfair only if it suggests the identity of the person suspected by the police before the witness has made an identification. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) Here, Valdez and Lopez had been fairly certain Sanchez was the shooter and requested to see him in person simply to eliminate the possibility of mistake. Moreover, both identified the silver Infiniti QX4 SUV in front of Sanchez’s home as the one involved in the shooting, which Valdez had previously described to the detectives as a light-colored Infiniti Q series SUV. Under these circumstances, therefore, we hesitate to find the showup improper. Even if we were so inclined, it is apparent the use of a showup rather than a live lineup was not unduly prejudicial in light of Sanchez’s previous identification by Valdez and Lopez.
In light of our conclusion the identifications were not made under unduly suggestive circumstances, we reject Sanchez’s contention they were inadequate to support his conviction. A witness’s testimony may be rejected on appeal only when it is physically impossible or inherently improbable. (People v. Mayberry (1975) 15 Cal.3d 143, 150; Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) To be inherently improbable, “‘the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.’” (Mayberry, at p. 150; People v. Headlee (1941) 18 Cal.2d 266, 267.) Neither Valdez nor Lopez’s testimony comes close to satisfying this standard.
3. The Constitutionality of CALJIC No. 2.92 Has Been Repeatedly Affirmed
Sanchez argues, in light of a number of studies and decisions from other states criticizing the reliability of eyewitness identifications, we should reconsider the constitutionality of CALJIC No. 2.92, which contains several factors (in particular, stress, memory and certainty) Sanchez challenges as non-neutral. We decline this invitation. The constitutionality of CALJIC No. 2.92 has been repeatedly affirmed by the Supreme Court, as has its successor, CALCRIM No. 315, which includes similar factors for the jury to evaluate in weighing an eyewitness identification. (See, e.g., People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright); People v. Johnson (1992) 3 Cal.4th 1183, 1232; People v. Ward (2005) 36 Cal.4th 186, 213 (Ward); see also People v. Sullivan (2007) 151 Cal.App.4th 524, 561-562.)
As given in this case CALJIC No. 2.92, the eyewitness identification instruction routinely used by trial courts until the adoption of CALCRIM No. 315 in 2006, stated: “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 identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’s 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 subjected at the time of the observation; the witness’s ability, following the observation, to provide a description of the perpetrator of the act; the extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness; the cross-racial or ethnic nature of the identification, if any; the witness’s capacity to make an identification; 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’s identification; whether the witness had prior contacts with the alleged perpetrator; the extent to which the witness is either certain or uncertain of the identification; whether the witness’s identification is in fact the product of his own recollection; and any other evidence relating to the witness’s ability to make an identification.”
We are, of course, obligated to follow Supreme Court precedent. (See Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
In Wright the Supreme Court instructed CALJIC No. 2.92 “should be given . . . in a case in which identification is a crucial issue . . . .” (Wright, supra, 45 Cal.3d at p. 1144.) “[T]he listing of [eyewitness identification] factors to be considered by the jury will sufficiently bring to the jury’s attention the appropriate factors, and . . . 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 nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness.” (Id. at p. 1143, fn. omitted.) The Court generally approved giving standard instructions concerning eyewitness identification factors, provided defense counsel is given an opportunity to suggest additional or supplemental factors. (Ibid.; see People v. Martinez (1987) 191 Cal.App.3d 1372, 1383.) If a defendant wishes to educate the jury as to the unreliability of eyewitness testimony in certain respects, he or she must use means other than jury instructions, such as expert testimony. (Wright, at pp. 1153-1154.) Wright also explains that “expert testimony has the advantage of being subject to cross-examination and rebuttal, thus allowing the jury to determine for itself the weight it should give to expert opinions, rather than binding the jury to accept certain experts’ views.” (Id. at p. 1154.) Sanchez’s failure to present an expert witness attacking the reliability of eyewitness identification does not alter this analysis.
4. The Detectives’ Gang Testimony Was Not Improper
To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crime at issue was committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) To prove a gang is a “criminal street gang,” the prosecution must demonstrate it has as one of its “primary activities” the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and it has engaged in a “‘pattern of criminal gang activity’” by committing two or more such “‘predicate offenses.’” (§ 186.22, subds. (e), (f); People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
To establish the necessary range of activities and the defendant’s intent, the Supreme Court has repeatedly affirmed the use of expert testimony by law enforcement professionals who have experience in the area of gang culture and psychology. (See, e.g., Gardeley, supra, 14 Cal.4th at p. 618 [expert testimony by police detective particularly appropriate in gang enhancement case to assist fact finder in understanding gang behavior]; People v. Gonzalez (2006) 38 Cal.4th 932, 944-946 [reaffirming Gardeley and admissibility of officer’s expert testimony in the area of gang culture and psychology]; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1208 [affirming admission of officer’s expert opinion that sole gunman who displayed no gang signs during shooting acted to bolster gang and his own reputation in gang]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384 [“It is difficult to imagine a clearer need for expert explication that that presented by a subculture in which this type of mindless retaliation promotes ‘respect.’”].)
Sanchez first contends the expert testimony of Detectives Cox, Tony Fitzsimmons and Angel Puente lacked foundation because it exceeded the scope of their respective expertise about the Witmer gang. Because there was no objection at trial on this ground, this issue has been forfeited. (See Evid. Code, § 353; People v. Bolin (1998) 18 Cal.4th 297, 321 [assertion on appeal that witness lacked necessary expertise under Evid. Code, § 720 was forfeited due to lack of objection]; cf. People v. Zepeda, supra, 87 Cal.App.4th at p. 1208 [defense counsel’s general objection to entirety of gang expert testimony insufficient to preserve objection to expert opinion on issue of defendant’s intent to benefit gang].) It is also without merit. The detectives each testified to having several years of education and experience in observing gang culture and gang activities, thus demonstrating the special knowledge, skill, experience and training sufficient to qualify each of them as an expert. (See, e.g., Gardeley, supra, 14 Cal.4th at p. 620 [law enforcement gang expert may rely on his conversations with defendant and other members of gang, as well as information from colleagues and law enforcement agencies to form expert opinion]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [witness’s “eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony” regarding gang’s primary activities]; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [gang expert’s personal familiarity with predicate crimes provided sufficient foundation for his testimony].) “‘“Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility.”’” (Bolin, at p. 322.) Sanchez has made no showing the detectives in this case lacked adequate experience or failed to base their opinions on relevant facts.
Sanchez next contends gang testimony of the sort offered by the detectives in this case is inherently unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 [113 S.Ct. 2786, 125 L.Ed.2d 469], in which the United States Supreme Court established standards governing the admissibility of scientific evidence and testimony. Whatever future this argument holds, we are constrained by the decisions in Gardeley and its progeny approving the admissibility of such opinion testimony.
The Supreme Court has granted review in a case from Division Six of this court to determine whether substantial evidence supports convictions under section 186.22, subdivision (a) (active participation in criminal street gang), and true findings with respect to enhancements under section 186.22, subdivision (b), based on a gang expert’s testimony that three gang members who raped a young woman in concert committed their crimes for the benefit of and in association with their gang. (People v. Albillar, review granted Aug. 13, 2008, S163905.) The Court’s opinion may restrict the scope of permissible testimony from gang experts with respect to the required showing under section 186.22 that a crime was committed for the benefit of, at the direction of, or in association with a criminal street gang and may also provide guidance as to the type and extent of evidence, in addition to an expert’s testimony, necessary to establish a crime is sufficiently gang-related to support a criminal street gang enhancement.
Finally, Sanchez contends Detective Puente’s testimony on the ultimate issue of the crime’s benefit to the gang exceeded the bounds of permissible opinion testimony and invaded the province of the jury. Detective Puente was asked to assume the following facts as part of a hypothetical question designed to elicit his opinion on the subject of benefit to the gang: “There’s a car . . . driving on Florence Place. The car is approached by an SUV. In the SUV . . . there are at least two . . . young men, a driver and a front passenger. . . . The SUV pulls up next to the car and somebody in the SUV says, ‘Where are you from?’ . . . Somebody in the car says, ‘We don’t gang bang.’ [¶] Somebody in the SUV shouts out, ‘Witmer,’ or ‘Witmer Trece,’ and shots are fired from the SUV, striking one person in the car and missing the other two, but hitting the car a total of three times.” Asked to opine whether the shooting was committed for the benefit of the gang and with the specific intent to promote, further or assist the gang, Detective Puente responded it was standard practice for a gang member, when confronting another person, to ask what gang he was from and to follow this question by announcing what gang the member is from. Claiming a gang, he explained, is intended to earn respect and instill fear in others.
Defense counsel failed to object when Puente referred to specific facts involving Sanchez, thus forfeiting the opportunity for the court to caution the witness or to deliver a limiting instruction. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) Nonetheless, we exercise our discretion to review this claim.
Although opinion testimony is not inherently objectionable because it embraces the ultimate issue to be decided by the trier of fact (Evid. Code, § 805), Sanchez relies on the distinction drawn in People v. Killebrew (2002) 103 Cal.App.4th 644, in which the court rejected a gang expert’s opinion that, “when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Id. at p. 652.) As the court in Killebrew explained, it is improper for an expert to opine on whether a “specific individual had specific knowledge or possessed a specific intent.” (Id. at p. 658.) Because the expert’s testimony provided the only evidence to establish the elements of the crime (id. at p. 659), it “did nothing more than inform the jury how [the expert] believed the case should be decided.” (Id. at p. 658; see also In re Frank S. (2006) 141 Cal.App.4th 1192, 1197-1198 [“Similar to Killebrew, the expert in this case testified to ‘subjective knowledge and intent’ of the minor. [Citation.] ‘Such testimony is much different from the expectations of gang members in general when confronted with a specific action’”].)
The narrow boundaries of those decisions do not aid Sanchez. The Supreme Court has unequivocally held expert opinion testimony of the type admitted in this case is proper. In Gardeley the Court held, based on an expert’s testimony that the details of an assault conveyed a “‘classic’ example of gang-related activity” to frighten residents of an area where the gang members sell drugs, a jury “could reasonably conclude that the attack on [the victim] by [gang members] was committed ‘for the benefit of, at the direction of, or in association with’ that gang, and ‘with the specific intent to promote, further, or assist in . . . criminal conduct by gang members’ as specified in the STEP Act.” (Gardeley, supra, 14 Cal.4th at p. 619, italics added.) As Killebrew itself explained, the gang expert’s testimony in that case was “not the type of culture and habit testimony” approved in Gardeley and subsequent cases. (Killebrew, supra, 103 Cal.App.4th at p. 654.) The opinions offered by Detective Puente, on the other hand, substantially adhered to this distinction and were premised upon hypothetical facts about gang expectations “properly rooted in the evidence presented at trial.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) These opinions were not only proper but also necessary to explain to the jury how a gang’s reputation and control over its territory is enforced, matters that are “‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .’ (Evid. Code, § 801, subd. (a).)” (Ferraez,at p. 931.) Accordingly, the trial court did not abuse its discretion in admitting Detective Puente’s expert testimony.
5. Sanchez’s Claims of Ineffective Assistance of Counsel Lack Merit
a. The legal standard governing claims of ineffective assistance of counsel
A defendant claiming ineffective assistance of counsel in violation of his Sixth Amendment right to counsel must show not only that his or her counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms but also that it is reasonably probable, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland); In re Jones (1996) 13 Cal.4th 552, 561.) “‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action “‘might be considered sound trial strategy’” under the circumstances. (Strickland, at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.)
On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [“[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions”]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘[i]f the record 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” [citation], the contention [that counsel provided ineffective assistance] must be rejected’”].)
b. The failure of Sanchez’s counsel to object to CALJIC No. 2.92
Sanchez challenges as ineffective his counsel’s failure to object to the use of CALJIC No. 2.92 in instructing the jury about eyewitness testimony. The record shows his counsel expressly requested CALJIC No. 292, instead of the newer instruction, CALCRIM No. 315. As he stated to the court, “This crime occurred in 2004. When it was tried previously we used CALJIC. CALJIC was the law of the state in 2004. I’m making a tactical decision. I’ve compared the jury instructions, and I want to ask the court to use CALJIC once again.” As explained above, a tactical decision on the part of counsel does not constitute ineffective assistance.
c. The failure of Sanchez’s counsel to present expert testimony about the fallibility of eyewitness identifications
Sanchez next contends the failure of his counsel to call an expert witness to testify about the fallibility of eyewitness identification violated his right to effective counsel. Whether to hire particular experts is generally a matter of trial tactics, however; and nothing in the record before us suggests counsel’s decision to forgo an eyewitness identification expert was unreasonable. As the Supreme Court has acknowledged, “[e]xpert testimony on the psychological factors affecting eyewitness identification is often unnecessary.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995.) Although one could certainly argue such testimony might have been helpful to the jury in this case, it is not difficult to posit a strategic reason for the decision not to call such an expert. Sanchez’s counsel may have elected to rely exclusively on his direct attack on the statements of the witnesses. It is also entirely plausible, Sanchez’s counsel, who was privately retained, presented the choice to his client (or his client’s family), who decided not to spend the funds necessary to retain a qualified expert.
Under the limited scope of inquiry available to us, therefore, we see no alternative but to reject Sanchez’s assertion of ineffective assistance of counsel. (See Strickland, supra, 466 U.S. at p. 689 [courts must presume challenged action “‘might be considered sound trial strategy’” absent evidence to contrary]; accord, People v. Dennis, supra, 17 Cal.4th at p. 541.)
d. Sanchez’s counsel’s failure to object to the proffered gang testimony
Finally, Sanchez claims his counsel was ineffective for failing to object to the gang expert testimony of the Bell Gardens detectives. Effective assistance of counsel, however, does not require counsel to make futile objections or motions. (People v. Memro (1995) 11 Cal.4th 786, 834; accord, People v. Price (1991) 1 Cal.4th 324, 326.) In light of the extensive authority cited above, any global objection would have been futile. Moreover, because the failure to raise legitimate objections to specific statements by the detectives could have easily been a strategic decision not to call undue attention to particular testimony, it does not constitute ineffective assistance of counsel. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
6. The Gang Evidence Was Not So Prejudicial as To Deprive Sanchez of His Right to Due Process
Sanchez relies on this court’s decision in People v. Albarran (2007) 149 Cal.App.4th 214 to argue the gang evidence admitted at trial (without objection, as we have noted) was so extensive and prejudicial as to undermine his right to a fair trial. Sanchez’s reliance on Albarran reflects a fundamental misunderstanding of our decision. In Albarran, after a jury convicted the defendant of multiple serious felonies, the trial court granted a new trial motion as to the gang enhancements, concluding the evidence was not sufficient to support the jury’s true findings as to the gang allegations. (The prosecutor failed to produce at trial critical evidence that had been identified at the pretrial hearing on the defendant’s unsuccessful motion to dismiss the gang enhancements and to exclude all gang evidence from trial.) The issue on appeal was whether the trial court erred in finding the highly inflammatory gang evidence admitted to prove the subsequently dismissed gang allegations did not unfairly prejudice the defendant’s trial on the underlying charges. We held the trial court should have granted the defendant’s new trial motion in its entirety, concluding, in effect, most of the gang evidence should never have been part of the trial. (Id. at pp. 227-232.) Here, in contrast, as we have held, the gang evidence was properly admitted and fully supported the special gang allegations. There was no improper use of highly inflammatory evidence, and no undue or improper prejudice.
7. Sanchez’s Sentence Does Not Constitute Cruel and Unusual Punishment
Sanchez argues his sentence constitutes cruel and unusual punishment because he was only 16 years old when the crime was committed. This issue was recently explored by our colleagues in Division Four in People v. Demirdjian (2007) 144 Cal.App.4th 10. There, the court rejected the claim a 15-year-old who was sentenced to consecutive 25-years-to-life terms for the brutal murders of two boys, noting that “the viciousness and circumstances of the crime must be considered in any assessment of punishment.” (Id. at p. 15.)
While we acknowledge appellate counsel’s distress at the length of the mandatory sentence imposed on Sanchez and recognize the regrettable impulsivity of teenaged offenders, the harshness of the sentence results directly from the repugnance with which the Legislature viewed the crime for which he was convicted. When he shot three bullets into Lopez’s car, he fortuitously missed two of the occupants altogether. And though he put out Lopez’s eye, he fortunately did not kill him. Nonetheless, he could just have easily committed three murders, all to prove his worth to his fellow gang members. We cannot say the sentence was undeserved. (Cf. People v. Guinn (1994) 28 Cal.App.4th 1130, 1147 [“the People of the State of California in enacting the provision [authorizing this punishment] . . . made a legislative choice that some 16- and 17-year olds, who are tried as adults, and who commit the adult crime of special circumstance murder, are presumptively to be punished with [life without parole]. We are unwilling to hold that such a legislative choice is necessarily too extreme, given the social reality of the many horrendous crimes, committed by increasingly vicious youthful offenders, which undoubtedly spurred the enactment.”]; see also People v. Rand (1995) 37 Cal.App.4th 999, 1001 [“A studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation.”].)
8. The Section 12022.53, Subdivision (d), Enhancement Was Properly Imposed on Count 5
a. Sanchez received adequate notice of the enhancement
Due process requires a criminal defendant be given fair notice of the charges against him to provide an opportunity to prepare a defense and to avoid unfair surprise at trial. (People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369; see People v. Tardy (2003) 112 Cal.App.4th 783, 786.) Constitutional principles of due process are satisfied, however, as long as the accusatory pleading apprises the defendant of the potential for the enhanced penalty and alleges every fact and circumstance necessary to establish its applicability. (People v. Thomas (1987) 43 Cal.3d 818, 826; Tardy, at p. 787.)
Here, the information alleged in connection with the attempted murder charged in count 1 that Sanchez had personally discharged a firearm, causing great bodily injury to his victim, Lopez, under section 12022.53, subdivision (d). The firearm enhancement was omitted, however, from count 2 in the information, charging Sanchez with assault with a firearm, and count 5, charging him with shooting at an occupied vehicle, the counts on which he was convicted. Sanchez now contends the sentence enhancement based on the jury’s finding he had personally used a firearm causing great bodily injury when committing the offense of shooting at an occupied vehicle, which added a term of 25 years to life to his sentence, must be stricken.
Section 12022.53, subdivision (d), provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 2034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
We have previously held the failure to separately allege a section 12022.53, subdivision (d), enhancement with respect to a particular count does not bar it from being imposed on that count, based on the jury’s finding, so long as a defendant was provided notice elsewhere he faced an enhanced penalty for causing great bodily injury for shooting another person. In People v. Riva (2003) 112 Cal.App.4th 981 this court upheld the imposition of a sentence enhancement under section 12022.53, subdivision (d), on an underlying conviction for shooting at an occupied vehicle under the same circumstances Sanchez now contests. (See Riva, at pp. 666-667.) There, as here, the information pleaded the enhancement on other counts but omitted it on the section 246 count. We concluded Riva had adequate notice of the charges against him.
We similarly conclude Sanchez had notice of the charges against him. Even if there were some theoretical merit to Sanchez’s position, moreover, that argument has been waived by his trial counsel’s express agreement to present to the jury the great bodily injury enhancement to the assault charge. When the jury instructions were being discussed in this case, the prosecutor acknowledged the information incorrectly omitted the section 12022.5 firearm enhancement allegation from counts 2 and 3. Defense counsel replied, “I have no problem. I’ve been aware since day one that the pleadings were computerized and the proof would conform to what they are now asking.” When the prosecutor next stated the section 12022.53, subdivision (d), great bodily injury enhancement had been omitted from count 5, defense counsel agreed the enhancement would apply to both counts 1 and 5. The jury was so instructed.
b. The imposition of the section 12022.53, subdivision (d), enhancement on Sanchez’s section 246 conviction was not barred by section 654 and does not constitute double jeopardy
Sanchez also contends imposition of the section 12022.53, subdivision (d), enhancement on count 5 was legally barred for several reasons. He first accuses California courts of ignoring the implications of the United States Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], which he asserts bars imposition of a firearm enhancement for a conviction on a charge that includes, as an element of the crime, the discharge of a firearm. The People correctly assert this strained argument misconstrues the import of Apprendi. As we wrote some years ago, “The California Supreme Court has succinctly explained Apprendi in the following terms: ‘This is what Apprendi teaches us: Except for sentence enhancement provisions that are based on a defendant’s prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the “prescribed statutory maximum” punishment for that crime.’ (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)” (People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1076.) In this case the firearm-use allegations were presented to the jury, which returned a true finding after being fully and properly instructed on all the elements of the enhancement. That true finding fully complies with the procedural requirements of Apprendi.
Sanchez next contends the sentence enhancement should have been stayed under section 654, which prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335.) Sanchez’s argument founders on the express language of section 12022.53 itself, which provides, “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in . . . Section 246 [shooting at an inhabited dwelling or vehicle] . . ., personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (§ 12022.53, subd. (d), italics added.)
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
In People v. Palacios (2007) 41 Cal.4th 720 -- a case conspicuously absent from Sanchez’s appellate briefs -- the Supreme Court held the sentence enhancement provisions of section 12022.53 are not limited by the multiple punishment prohibition of section 654: “[I]n enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654. . . . [¶] . . . [¶] [T]he broad and unambiguous scope of ‘[n]otwithstanding any other provision of law’ overrides the application, if any, of section 654 to the imposition of punishment prescribed in section 12022.53, subdivisions (b), (c) and (d).” (Palacios, at pp. 726-728.) Indeed, the Palacios Court anticipated, and then specifically rejected, the very argument Sanchez now advances: “Offenses for which the subdivision (d) enhancement is applicable include section 246, discharging a firearm at certain occupied structures, and section 12034, subdivisions (c) and (d), discharging a firearm from a vehicle. [Citation.] These offenses necessarily involve the use of a firearm and section 12022.53 expressly provides for a firearm use enhancement. By including these offenses and providing that its enhancements apply ‘[n]otwithstanding any other provision of law,’ the Legislature made clear its intention that section 654 not apply.” (Id. at p. 732; see also People v. Hutchins (2001) 90 Cal.App.4th 1308, 1314-1315 [§ 654 does not apply in context of firearm-use enhancements]; People v. Sanders (2003) 111 Cal.App.4th 1371, 1375 [“‘where imposition of a firearms use enhancement is made mandatory notwithstanding other sentencing laws and statutes, it is error to apply section 654 to stay imposition of such an enhancement’”].)
The precise question decided by the Supreme Court in People v. Palacios, supra, 41 Cal.4th 720, was whether section 654 precludes punishment for more than one section 12022.53 enhancement when each is based on a single act committed against a single victim, although in the commission of separate crimes.
We similarly reject, as wholly without merit, Sanchez’s additional contentions imposition of the section 12022.53, subdivision (d), enhancement violates the Double Jeopardy Clause of the state and federal constitutions (see People v. Scott (2001) 91 Cal.App.4th 1197, 1212 [finding no double jeopardy violation in imposition of § 12022.5 enhancement on underlying offense of assault with a firearm]) and is barred by principles of collateral estoppel (see Schiro v. Farley (1994) 510 U.S. 222, 232 [114 S.Ct. 783, 127 L.Ed.2d 47] [defendant must show he has prevailed on an ultimate issue of fact to invoke doctrine of collateral estoppel].)
DISPOSITION
The judgment is conditionally reversed. On remand the trial court is to conduct an in camera review of the requested personnel records, as identified in this opinion, for relevance. If that review reveals no relevant information, the trial court shall reinstate Sanchez’s original judgment of conviction and sentence. If that review reveals relevant information, the trial court must order disclosure, allow Sanchez an opportunity to demonstrate prejudice and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If Sanchez is unable to show any prejudice, the original judgment is to be reinstated. In all other respects the orders of the trial court and Sanchez’s conviction are affirmed.
We concur: WOODS, J., ZELON, J.