Opinion
B187553
5-2-2007
THE PEOPLE, Plaintiff and Respondent, v. JESUS ENRIQUE SANTOYO, Defendant and Appellant.
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, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Jesus Enrique Santoyo appeals from a judgment entered upon his convictions by jury of premeditated attempted murder (Pen. Code, §§ 664, subd. (a) & 187, subd.(a)) and shooting from a motor vehicle (§ 12034, subd. (c)). The jury also found to be true as to each count that appellant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d), (b) & (e)(1), (c) & (e)(1), and (d) & (e)(1)), that appellant inflicted great bodily injury by discharging a firearm from a motor vehicle (§ 12022.55), and that he committed the offense to benefit a criminal street gang (§ 186.22, subd. (b)(1)(A)). The trial court sentenced appellant to an aggregate state prison term of 40 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends that (1) CALJIC No. 2.92 is erroneous, and instructing the jury with it rendered his trial fundamentally unfair; (2) he was deprived of due process and a fair trial by the use of unduly suggestive identification procedures; (3) eyewitness identification evidence is unreliable and, absent corroborating evidence, is insufficient to support his convictions; (4) he suffered ineffective assistance of counsel as the result of his counsels failure to (a) move to exclude the identification evidence as having been obtained through unconstitutionally suggestive police identification procedures, (b) present expert testimony, (c) request cautionary instructions on the fallibility of memory and eyewitness identifications, and/or (d) object to several CALJIC No. 2.92 factors as ambiguous or having been proven to be inadequate indicators of identification accuracy; (5) the opinion testimony of the investigating detective exceeded the scope of permissible expert testimony; and (6) punishment for both the crime of attempted murder and the firearm enhancement violates double jeopardy, collateral estoppel, double punishment, the Ireland Merger Doctrine and the principles set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
People v. Ireland (1969) 70 Cal.2d 522 (Ireland).
We affirm.
FACTUAL BACKGROUND
The prosecutions evidence
The shooting
On April 1, 2004, Jose Hernandez was visiting his girlfriend, Becky Pifer, at her home in the City of La Puente. At approximately 8:45 p.m., Pifer walked Hernandez to his car. As they stood next to it embracing, a blue pickup truck, with two Hispanic males inside, made a U-turn then turned again and pulled up next to them, with the passenger closest to them. The passenger, later identified as appellant, was a bald, male Hispanic, between the ages of 18 and 21.
Appellant asked Hernandez, "`Where are you from, Holmes?" Pifer responded, "`Hes from nowhere," meaning that he was not in a gang. Appellant said, "`Shut the fuck up, bitch, . . . Im not talking with you. . . . Where [sic] he from?" Hernandez said, "`Im from nowhere." Appellant told Hernandez to lift his shirt and said, "Im from Valinda Flats. Fuck Puente." Hernandez understood that to mean that appellant was in the Valinda Flats gang and that appellant believed Hernandez was a Puente Street gang member. There was an ongoing gang war between those gangs. Hernandez was not in a gang and turned to leave, at which time, Pifer saw appellant reach toward the floorboard inside the truck. She ducked behind Hernandezs car. Pifer and Hernandez heard a gunshot, and Hernandez fell to the ground. Pifer telephoned 911, and Hernandez was taken to the hospital. The parties stipulated that he suffered great bodily injury.
Identifying appellant
Approximately a week after the shooting, after being admonished about identifications, Pifer and Hernandez separately identified appellant as the shooter from a photographic lineup. They also identified him at the preliminary hearing, at an earlier trial in this matter that resulted in a hung jury, and at the second trial. Detective Steven Skahill arrested appellant on August 5, 2004.
Gang evidence
The parties stipulated that the Valinda Flats Midgets is a criminal street gang within the meaning of section 186.22. Between May 2003 and February 2004, sheriff deputies had contacts with appellant in the company of known Valinda Flats gang members and at known gang hangouts. He was seen wearing gang attire, was bald, and had the moniker "Pelon." Investigators obtained a photograph of appellant with a known gang member. He had been connected with a large amount of graffiti. On one occasion, there was Valinda Flats graffiti on several walls, and appellant was detained with matching paint on his hands. He admitted painting the walls and being a member of the Valinda Flats Midget gang. Appellant had a few prior misdemeanor convictions but no prior felony convictions.
An expert testified that Valinda Flats Midgets gang was a subgroup of the Valinda Flats gang.
The graffiti said, "Valinda Flats Midgets" and had the moniker "Pelon."
Detective Skahill, assigned to investigate the Hernandez shooting, testified as a gang expert. He described the common gang practice of "cruising the street and hitting people up," meaning challenging someone by asking their gang affiliation. Generally, cruising gang members bring a gun in the car and have assigned roles, such as driver or shooter. The right front passenger is usually the designated shooter and responsible for issuing the challenge. The driver is the lookout. Typically gang members would not shoot past a gang member for fear of accidentally shooting him.
Detective Skahill opined that appellant was to be the aggressor and make the challenge, based on the scenario given by Pifer and Hernandez; the driver made a U-turn to place the passenger as close as possible to the victim, and the driver said nothing and made no movements, suggesting that his role was to be the lookout.
On January 7, 2005, appellant was placed in a holding cell in which there was no graffiti on the walls. When he was removed from the cell, gang graffiti for Valinda Flats Midgets was etched in the concrete.
Based upon the amount of graffiti appellant had been associated with, Detective Skahill opined that he was an active member of the Valinda Flats gang. He also opined that writing gang graffiti and committing violent crimes, such as appellants drive-by shooting, benefit the gang by sending a message to rival gangs not to enter Valinda Flats neighborhood and enhance the gangs reputation by creating fear.
The defenses evidence
Appellants mother, Trinidad Torres, testified that when she learned appellant had been arrested for shooting someone on Thursday, April 1, 2004, she reconstructed her activities for that day. She had cleaned the house of her employer, for whom she worked every other Thursday, after her regular job. She arrived at the job at 3:00 p.m. and got home just before 7:00 p.m. Her employers records reflected that Torres was paid on the day of the shooting and two weeks before and after.
When Torres arrived home on April 1, 2004, appellant and her two daughters, ages five and seven, were there. Torres remained home the rest of that evening and was certain appellant did also, as he was suffering from a genital infection. She had taken him to the doctor on March 27, 2007 for the condition and was given a prescription that she gave him with his meals. He was in a great deal of pain and asked for pills for his pain and fever. Appellant remained home for a week to 10 days after receiving the prescription.
The prosecutor subpoenaed the records of Kaiser Permanente where Torres testified appellant was taken to obtain the prescription. A Kaiser custodian of records declaration indicated that no such records were located.
When Torres was in court at an earlier hearing, she heard Hernandez ask Pifer when appellant entered the courtroom, "`Is that him?" Pifer responded, "`It looks like [him] but hes very young."
DISCUSSION
I. Identification issues
A. Identification evidence
According to Pifer and Hernandez, it was dark outside at the time of the shooting, but there was a streetlight in front of Pifers house. At no time during the incident was the trucks interior light on. Pifer got a good look at appellants face, although neither she nor Hernandez saw a firearm in his hand or actually saw him shoot. They nonetheless believed he was the shooter. Pifer could not estimate appellants height or weight because she only saw his shoulders and face, and the entire incident lasted only a few seconds. She testified at the preliminary hearing that she could not see appellants hair because she was "pretty sure" he was wearing a baseball cap. The driver never moved or said anything during the confrontation.
Deputy Sheriff Marco Parra, who responded to the shooting, had a cursory interview with Pifer. She told him that she saw two Hispanic males in a truck, and saw the passenger point a gun at Hernandez and shoot him.
On April 8, 2004, Detective Skahill showed Pifer 11 photographs that he had assembled, depicting active Valinda Flats gang members who were "putting in work and busiest" for that gang. Before showing the photographs, he admonished her that she would be looking at photographs of different people with similar appearances, that the suspect might or might not be in the photographs, that she was under no obligation to identify anyone, and that the purpose of the photographs was to eliminate the innocent as well as identify the perpetrators. She signed a form containing those admonitions. Pifer was then shown two pages of photographs and instantly identified appellant from the second page as the passenger who shot Hernandez. She was told not to discuss her identification with anyone else, and she did not. She also identified appellant at the preliminary hearing, the initial trial that resulted in a mistrial and at the current trial. Pifer was certain of all of her identifications.
The next day, Detective Skahill showed Hernandez the same photographs after giving him the same admonitions as given to Pifer and having him sign an admonition form. Hernandez instantly identified appellant as the person who shot him. He also identified appellant at the preliminary hearing, the earlier trial and the current trial. He too was certain of his identifications. At the preliminary hearing, Hernandez testified that he had told Detective Skahill that he saw a revolver-type gun, possibly a .22 revolver.
Detective Skahill explained that when he showed a photographic lineup to a witness, he watched their eyes because the "subconscious will go and track to a picture, something they recognize. Nine out of ten—hasnt failed me yet—theyre looking at the person that shot them or the person that did it. I look at the faces and watch what their eyes are identifying without telling me."
B. CALJIC No. 2.92 is not defective
The trial court instructed the jury in accordance with CALJIC No. 2.91 that the People had the burden of proving beyond a reasonable doubt that appellant committed the crimes for which he was charged and that if, after considering the circumstances of the identification and evidence in the case, there was a reasonable doubt whether appellant was the perpetrator, he must get the benefit of the doubt and be found not guilty. It also instructed the jury in accordance with CALJIC No. 2.92 that it should consider the eyewitnesses "believability" and other listed factors bearing on the accuracy of their identifications.
CALJIC No. 2.91, as given, provides: "The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which [he/she] is charged. [¶] If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find [him/her] not guilty."
CALJIC No. 2.92, as given, provides: "Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] 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 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[] 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;] [¶] [The witness capacity to make an identification;] [¶] [Evidence relating to the witness ability to identify other alleged perpetrators of the criminal act;] [¶] [Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;] [¶] [The period of time between the alleged criminal act and the witness identification;] [¶] [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 identification is in fact the product of [his/her] own recollection;] [¶] . . . and [¶] Any other evidence relating to the witness ability to make an identification."
Appellant contends that CALJIC No. 2.92 violated his right to due process under the Fifth and Fourteenth Amendments "by denying him his substantial right to have a jury properly instructed on the law pertinent to his defense." He argues that that instruction improperly included as an indicator of the accuracy of an eyewitness identification, a witnesss uncertainty, although the "consensus of opinion among . . . scientists is that a witnesss certainty does not equate with the accuracy of his identification." He further argues that the listed factors; the witnesss ability to identify the perpetrator from a photographic array or physical lineup, the stress to which the witness was subject when observing the suspect, and whether the identification is a product of the witnesss own recollection, are misleading without explanations of how they are to be applied, and that they misled the jury here.
Respondent contends that appellant has forfeited this contention by failing to object to, or request clarification or modification of the instruction in the trial court. We agree. "`A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Hart (1999) 20 Cal.4th 546, 622; see also People v. Bolin (1998) 18 Cal.4th 297, 328; People v. Ward (2005) 36 Cal.4th 186, 213-214 ["[w]ith respect to the proposed modification [of CALJIC No. 2.92], defendant never requested the additions he now asserts should have been given; and we find no basis for imposing a sua sponte duty to modify CALJIC No. 2.92 as now asserted"]; People v. Gonzalez (2002) 99 Cal.App.4th 475, 483.)
If this issue had been properly preserved for appeal, we would find it to be without merit. In the seminal case of People v. Wright (1988) 45 Cal.3d 1126 (Wright), the defendant was convicted of armed robbery and related offenses based upon an eyewitness identification. The trial court rejected the defendants request for five special identification-related instructions. Our Supreme Court concluded that the trial court erred in failing to give the requested instruction that simply listed the factors to be considered in a neutral fashion, holding that "a proper instruction on eyewitness identification factors should focus the jurys 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. We disagree with the dissents suggestion that CALJIC No. 2.92 is `deficient for failing to explain the effects of the enumerated factors. [Citation.] An instruction that `explained the influence of the various psychological factors would of necessity adopt the views of certain experts and incorporate the results of certain psychological studies while discounting others. It would require the trial judge to endorse, and require the jury to follow, a particular psychological theory relating to the reliability of eyewitness identifications. Such an instruction would improperly invade the domain of the jury, and confuse the roles of expert witnesses and the judge." (Wright, supra, at p. 1141.)
Chief Justice Lucas, writing for the majority, described the manner in which scientific thinking on the subject of eyewitness identifications could be incorporated into a trial, as follows: "Expert witnesses may be called by both parties, thus enabling the jury to hear both sides of the scientific theories regarding eyewitness identifications. Questioning can focus on the psychological factors most relevant to the particular circumstances of the case, thereby avoiding presenting the jury with potentially inaccurate overgeneralizations. Further, cross-examination of experts can reveal the weaknesses in their testimony and theories, as well as the underlying assumptions on which their conclusions are based. . . . [¶] . . . [¶] . . . [T]he listing of factors to be considered by the jury will sufficiently bring to the jurys 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." (Wright, supra, 45 Cal.3d at pp. 1142-1143, fns. omitted.)
Wrights endorsement of a CALJIC No. 2.92 type instruction has been accepted in subsequent cases. (See, e.g., People v. Fudge (1994) 7 Cal.4th 1075, 1110 [reiterating that defendant is entitled to an instruction that lists in a neutral manner factors related a determination of reasonable doubt regarding identification]; and People v. Johnson (1992) 3 Cal.4th 1183, 1230-1234 [rejecting challenges to several CALJIC No. 2.92 factors, including the certainty of the identification, the stress experienced when event witnessed and the impact of post-event information].)
To the extent appellant contends that the consensus of more recent scientific evidence indicates that stress is detrimental to identification, that certainty is not correlated to accuracy, that identification from a photographic lineup does not render it accurate due to subtle suggestibility factors, and identification is not exclusively from ones own memory but affected by other factors, CALJIC No. 2.92 does not suggest otherwise. It simply states that these factors bear upon the accuracy of identifications, leaving it to counsel to put on evidence and argue how these factors operate in their clients favor. The record before us fails to support a finding that any of the listed factors has been scientifically determined to be an inappropriate consideration. In fact, there was no evidence introduced at trial reflecting scientific consensus with regard to any of these factors.
Even if it was error to give CALJIC No. 2.92 in the form it was given, that error was harmless in that there is no reasonable probability that had the instruction not been given, or had it been given with explanations of some of the factors, a result more favorable to appellant would have resulted. (Wright, supra, 45 Cal.3d at p. 1144 [harmless error standard of People v. Watson (1956) 46 Cal.3d 818, 836 applicable].) Here, there were two eyewitnesses who identified appellant as the shooter. Evidence that he was a gang member and had a motive to shoot Hernandez was strong. The trial court instructed the jurors that they were the "sole judges of the believability of a witness[,] . . . the weight to be given the testimony of each," that in determining believability of a witness they could consider the witnesss opportunity or ability to see and hear any matter about which he or she testifies and the witnesss ability to remember and relate those matters here in court (CALJIC No. 2.20), that a witnesss observations may be unreliable, that "two persons witnessing an incident or a transaction often will see or hear it differently" (CALJIC No. 2.21.1), and "[i]f, after a consideration of all of the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find him not guilty." (CALJIC No. 4.50.) The record does not reflect any jury confusion on the subject of identification. It deliberated for little more than two hours without asking for clarification of instructions, rereading of transcripts, or indicating any problem reaching a verdict. Also, defense counsel vigorously argued the weaknesses in the identifications and that the factors in CALJIC No. 2.92 cut against their accuracy. The jury nonetheless believed the eyewitnesses.
C. The identifications were not unduly suggestive
Appellant contends that he was deprived of due process and a fair trial by an unduly suggestive identification procedure. He argues that Detective Skahill displayed the photographs believing appellant was the perpetrator and watching the witnesses eye movements as they viewed the photographs, thereby subtly communicating to them whom to select. This contention is without merit.
Respondent contends that appellants failure to object in the trial court to the identifications being unduly suggestive forfeited this contention. We agree. (Evid. Code, § 353; People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham) [claim of suggestive photographic lineup forfeited if not timely raised]; see also People v. Adams (1969) 1 Cal.App.3d 29, 32.) Appellant never raised this issue in the trial court.
If the issue had been properly preserved for appeal, we would find it to be without merit. We review deferentially the trial courts findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial courts ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)
The gravamen of a suggestive identification claim is that the defendants identification as the perpetrator of a crime is derived from a lineup that, under all of the circumstances of the case, is so unnecessarily suggestive as to create a "`substantial likelihood of irreparable misidentification." (Cunningham, supra, 25 Cal.4th at p. 990; Simmons v. United States (1968) 390 U.S. 377, 384.) "`The question is whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him." (Cunningham, supra, at p. 990; see also People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) The defendant bears the burden of demonstrating an unreliable identification procedure. (Cunningham, supra, at p. 989.)
In determining whether an identification violates due process, "`". . . the court must ascertain (1) `whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances. . . ." [Citation.]" (People v. Gonzalez (2006) 38 Cal.4th 932, 942; People v. Carpenter (1997) 15 Cal.4th 312, 366-367.) Because we conclude that appellant failed to meet his burden of establishing that the photographic identification was unduly suggestive, we need not consider whether the identification process was reliable under the totality of circumstances.
There is no suggestion in the record that appellants appearance or position in the pictorial array made him stand out or that the photographs were somehow specifically selected to direct the witnesses attention to him. While appellant argues that Detective Skahill believed appellant was the suspect and watched the witnesses eyes, thereby assisting their selection, this assertion is pure speculation. There is no evidence that the detective knew appellant was the suspect or made any gesture or engaged in any conduct during the photographic identification that was noticed by Pifer or Hernandez or impacted their response. Furthermore, the witnesses received a comprehensive admonition and each signed a form containing those admonitions. In short, there is no evidence that anything "`caused defendant to "stand out" from the others in a way that would suggest the witness should select him." (People v. Yeoman (2003) 31 Cal.4th 93, 124.)
Successive displays of photographs of a suspect are not automatically impermissibly suggestive. (See People v. Yeoman, supra, 31 Cal.4th at p. 124; see also People v. Blair (1979) 25 Cal.3d 640, 660-661.) Victims frequently identify criminal suspects both before and during trial. Pifer and Hernandez had each already selected appellant from a photographic lineup and simultaneously, and without hesitation, identified him. Because the pretrial photographic identification was not unduly suggestive, the subsequent in-court identifications were not tainted. (People v. Bethea (1971) 18 Cal.App.3d 930, 937-938.)
II. Sufficiency of the evidence
Appellant contends that there is insufficient evidence to sustain his conviction. He argues that the only direct evidence of his guilt, the eyewitnesses identifications, were tainted and unreliable because the confrontation was in darkness and lasted only a few seconds; the witnesses could not give a detailed description of him and gave conflicting descriptions of his hairstyle; the witnesses had no prior contact with him and Pifers identification was cross-racial; and the photographic identifications were not close in time to the crime and it is impossible to determine whether the identifications were the product of their independent memories or of the photograph reinforced by courtroom appearances. Appellant therefore argues that the identification evidence cannot be considered, and there is no other evidence that appellant committed the offenses.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin, supra, 18 Cal.4th at p. 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless `"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, at p. 331.)
Ignoring these fundamental principles, appellant improperly focuses on the evidence he believes undermines the eyewitnesses identifications. We are required to focus on the evidence supporting them. When properly considered, that evidence is sufficient to sustain the convictions. Although Pifer and Hernandez observed appellant only briefly, the observation was during a conversation in which each paid close attention to what was being said. Furthermore, the evidence reveals that while it was dark outside, there was a streetlight nearby. As discussed previously, there is no evidence that the witnesses initial photographic identification was unduly suggestive. Each separately selected appellant from a photographic lineup of 11 individuals. Both were certain of their identifications. The identification occurred only a week after the shooting. Though neither Pifer nor Hernandez could identify appellants physical build or attire, that is readily explained by the fact that he was sitting in a car and talking to them through a window from which only his head and shoulders were visible. Unless testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The identification evidence here is neither physically impossible nor inherently improbable.
III. Ineffective assistance of counsel
Appellant contends that he suffered ineffective assistance of counsel by virtue of his attorneys failure to (1) move to suppress the eyewitness identification testimony as having been obtained through unconstitutionally suggestive police identification procedures, (2) present an eyewitness expert, (3) request cautionary instructions on factors leading to the causes of mistaken identifications, and/or (4) object to several factors listed in CALJIC No. 2.92 on grounds that they were ambiguous or have been proven inadequate indicators of identification accuracy. He argues that these failures were not tactical trial strategy "because there can be nothing strategic about not producing evidence tending to destroy the credibility of witnesses whose testimony is the only evidence against an accused." This contention lacks merit.
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsels representation fell below an objective standard of reasonableness, and, but for counsels errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn 1.) A reasonable probability "`is a probability sufficient to undermine confidence in the outcome." (People v. Adkins (2002) 103 Cal.App.4th 942, 950.)
"`"Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a `strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." [Citation.] . . . . "Tactical errors are generally not deemed reversible, and counsels decision-making must be evaluated in the context of the available facts." [Citation.] [¶] In the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. ([Citation]; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [on appeal, a conviction will be reversed on the ground of ineffective assistance of counsel "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission"].) [Citation.]" (People v. Jones (2003) 29 Cal.4th 1229, 1254.) "In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal." (People v. Pope (1979) 23 Cal.3d 412, 426, fn. omitted; disapproved on other grounds in People v. Berryman, supra, 6 Cal.4th at p. 1081, fn. 10.)
For the reasons discussed in part I, ante, appellants claim that counsel was ineffective for failing to object to several factors listed in CALJIC No. 2.92, failing to request cautionary instructions and failing to move to suppress the eyewitness identifications as unconstitutionally suggestive, must fail. With respect to defense counsels failure to present an identification expert, the record does not indicate whether a request was made to trial counsel for an explanation. It is further silent on whether defense counsel attempted to obtain such an expert. We cannot say that there is no possible tactical reason for failing to present such testimony. Perhaps defense counsel was unable to locate an expert who would render a sufficiently favorable opinion. Perhaps he felt that because he had previously obtained a hung jury without using an expert, one was unnecessary, or perhaps defense counsel felt that he could adequately argue the CALJIC No. 2.92 factors to appellants advantage without an expert, the calling of whom might only have resulted in the prosecution also presenting an eyewitness expert. Decisions not to call certain witnesses are peculiarly matters of trial tactics, unless the decision results from the unreasonable failure to investigate. (People v. Bolin, supra, 18 Cal.4th at p. 334.)
Furthermore, there was no reasonable probability that if a favorable eyewitness expert had been presented the result of trial would have been different. In cross-examination and in closing argument, defense counsel consistently attacked the eyewitnesses identifications. He pointed to the brevity of their observation and the stress under which the observations were made, arguing that stress and fear can negatively impact accuracy. He also emphasized that the witnesses had never seen appellant before, observed him in darkness, were only able to see his face and upper body, and contradicted each other in describing his hair, Hernandez stating that appellant was bald while Pifer stated that she could not tell his hair style because he wore a hat. Defense counsel argued the lack of reliability of photographs, as compared to face-to-face identifications, and the shortcomings of court identifications where the suspect is the only person present. Given counsels broad and persistent attack on the identifications, we cannot say that it is reasonably probable that presentation of an eyewitness expert would have led to a more favorable outcome for appellant.
IV. Permissible scope of gang expert testimony
Detective Skahill, a gang expert, testified that it was a common gang practice for gang members to "cruise" their territory, designate roles for members cruising, and to "hit up" individuals they did not recognize. He was then asked his opinion on whether appellant, or the passenger in the car, was the shooter, and responded: "My opinion is through the course of what Ive just discussed, and the actions by [appellant] in the car, that being the passenger, his primary responsibility was the aggressor, the challenger, whatever had to be done with whatever they confronted out in the streets when they were cruising around." Defense counsel objected that the question called for an improper conclusion and invaded the province of the jury. The trial court admonished the jury and ruled: "Well, ladies and gentlemen, in terms of the identity of the passenger, and any other fact in the case, obviously you folks are the final arbiters. The witness is entitled to render opinions on matters beyond the common knowledge of laypersons, i.e., hes testifying as an expert, and at the end of the case I will give you some instructions as to how to evaluate expert testimony. Im going to overrule your objection at this point, Mr. Daugherty, with those provisos."
Detective Skahill also responded to a question as to the effect of Hernandezs denial of gang affiliation, as follows: "When [Jose is] asked where hes from and told to pick up his shirt to see if theres any tattoos on there, when the people pulled up next to him, theyve already made up their minds they are going to do something about this. They didnt like this guy for some reason, they didnt want him there. . . ." (Italics added.) Appellant did not object to this question or move to strike the answer.
Appellant contends that Detective Skahills opinions exceeded the scope of permissible expert testimony. He argues that the detective opined on the ultimate issues in the case that are to be decided by the jury; that appellant was the shooter and that the murder was premeditated.
Respondent contends that appellant forfeited this contention with regard to Detective Skahills statement suggesting that the murder was premeditated by failing to raise it in the trial court. We agree. (People v. Waidla (2000) 22 Cal.4th 690, 717.) Appellant argues an objection would have been futile in light of the trial courts overruling his earlier objection to Detective Skahills testimony regarding who shot Hernandez. We disagree. While the objections to the premeditation testimony might have been the same as the objections to the testimony of who was the shooter, the resolution of those objections involved different circumstances which the trial court might have resolved differently.
With regard to Detective Skahills opinion that appellant shot Hernandez, we review the trial courts ruling under the abuse of discretion standard. (People v. Smith (2003) 30 Cal.4th 581, 627.) "`As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.]" (People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
"Opinion testimony may be admitted in circumstances where it will assist the jury to understand the evidence or a concept beyond common experience. Thus, expert opinion is admissible if it is `[r]elated to a subject that is sufficiently beyond common experience [and] would assist the trier of fact. [Citation.] Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness. [Citation.]" (People v. Torres (1995) 33 Cal.App.4th 37, 45; Evid. Code, § 801, subd. (a).)
Furthermore, "[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) "`There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case." (People v. Valdez, supra, 58 Cal.App.4th at p. 507 [trial court properly allowed opinion on whether conduct was for the benefit of a criminal street gang]; see also People v. Doss (1992) 4 Cal.App.4th 1585, 1596 [trial court properly allowed pharmacist, qualified as an expert, to render an opinion on the ultimate issue of whether the defendant, also a pharmacist, possessed certain prescription drugs for the purpose of illegal sale on the street]; but cf. People v. Torres, supra, 33 Cal.App.4th at pp. 47-48 [error to permit expert testimony on whether [robbery and extortion] had been committed because the jury is competent to determine this and the expert testimony was "tantamount to expressing the opinion defendant was guilty of robbery and the first degree felony murder"].) ""`[T]he true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved . . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one . . . ."" (People v. Valdez, supra, at p. 507.)
"A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. [Citations.] . . . . [T]he reason for employing this rule is not because guilt is the `ultimate issue of fact to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case. [Citation.] Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." (People v. Torres, supra, 33 Cal.App.4th at pp. 46-47; People v. Coffman (2004) 34 Cal.4th 1, 90.)
The question here is a close one. On the one hand, use of gang expert opinion evidence regarding gang "culture and habits" is well established. (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657; People v. Ochoa (2001) 26 Cal.4th 398, 458; People v. Williams (1997) 16 Cal.4th 153, 192-196.) Lay people may not generally know that gang members cruise, "hit on" people, have assigned roles and that the passenger who makes a challenge is likely to be the shooter. On the other hand, Detective Skahills testimony specifically indicating that appellant was the shooter added little to assist the jury. He had already testified to the common gang practices regarding cruising, and even without his opinion on whether appellant was the shooter, the jury would likely have concluded that the person closest to Hernandez, who was not driving and was therefore free to engage in other conduct, and who did not have to fire around a fellow gang member, was the likely shooter. The driver said and did nothing during the incident. Moreover, there were two eyewitnesses that testified that appellant was the shooter.
Not only did Detective Skahills opinion not assist the jury, it was tantamount to opining that appellant was guilty of the charges, the ultimate issue for the jury upon which a witness is not permitted to opine. (People v. Coffman, supra, 34 Cal.4th at p. 90.) As a result, the trial court abused its discretion in allowing the opinion. We nonetheless conclude that the error was harmless in that it is not reasonably probable had the evidence been excluded, appellant would have realized a more favorable result. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Earp (1999) 20 Cal.4th 826, 877; see also People v. Adan (2000) 77 Cal.App.4th 390, 394 [applying Watson standard to claim that expert testimony properly admitted].) Immediately after the challenged testimony, the jurors were instructed that they were the final arbiters as to the identity of the passenger and of any other facts of the case. In the final instructions to the jury before deliberations, the trial court instructed that jurors were not bound by an experts opinion, that they could disregard it, and that the opinion was only as good as the facts and reasons on which it was based. The jury was also instructed that it was their duty to decide the case on the facts proved from the evidence adduced at trial. Jurors are presumed to understand and follow the courts instructions. (People v. Young, supra, 34 Cal.4th at p. 1214.) Further, as explained above, Detective Skahills opinion added little to the already strong evidence that appellant was the shooter.
V. Sentencing
Appellant was convicted of premeditated attempted murder and shooting from a motor vehicle. The jury also found to be true the allegations that he had personally and intentionally discharged a firearm causing great bodily injury, had personally inflicted great bodily injury and had committed the offenses for the benefit of a criminal street gang. The trial court sentenced him to an indeterminate sentence of life for the murder conviction, with the possibility of parole no sooner than 15 years because of the gang enhancement, plus a consecutive 25-years-to-life sentence for the gun-use enhancement.
Appellant contends that punishment for both attempted murder and firearm use, by which the attempt was effected, violates principles of double jeopardy, collateral estoppel, double punishment, the Ireland Merger Doctrine and the principles set forth in Apprendi, supra, 530 U.S. 466. We find these contentions to be without merit.
A. Section 654
Appellant argues that section 654 bars punishment for both the attempted murder and the firearm discharge because both are comprised of the identical act of shooting Hernandez. We disagree. Section 654 does not bar imposition of the section 12022.53 firearm enhancement consecutive to a sentence on the underlying offense.
Section 654 provides in part: "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." (§ 654, subd. (a), italics added.) Appellant is not being punished twice for the same act. He is being punished for attempting to kill someone, and receiving additional punishment for having selected a method of doing so that the Legislature has determined presents special dangers warranting increased punishment.
Furthermore, the plain language of the firearm enhancement in section 12022.53 reflects a legislative intent that it not be subject to section 654. Section 12022.53, subdivision (d) states that "[n]otwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony." (Italics added.) Section 12022.53, subdivisions (g) and (h) provide that "[n]otwithstanding any other provision of law," (italics added) a trial court " shall not" (italics added) suspend execution or imposition of sentence for any person coming within that enhancement, or strike any allegation or finding bringing a person within its provisions. (See People v. Hutchins (2001) 90 Cal.App.4th 1308, 1314 ["[S]ection 654 does not bar imposition of a single firearms use enhancements to an offense committed by the use of firearms, unless firearms use was a specific element of the offense itself. Indeed, 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"]; see also People v. Myers (1997) 59 Cal.App.4th 1523, 1529 [involving firearm enhancement in § 12022.55]; People v. Ross (1994) 28 Cal.App.4th 1151, 1157-1159 [involving firearm enhancement in § 12022.5].)
B. Apprendi
Appellant argues that distinguishing the method of killing from the offense violates the precepts of Apprendi because the firearm enhancement exceeded the maximum term for the offense and is the functional equivalent of an element of a greater offense. We disagree.
Apprendi holds that imposition of a sentence enhancement, other than a prior conviction, which increases the sentence beyond the prescribed statutory maximum, must be based upon jury findings beyond a reasonable doubt. Here, the jury found the firearm enhancement to be true beyond a reasonable doubt.
C. Double Jeopardy
The double jeopardy clause of the Fifth Amendment to the federal Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." (U.S. Const., 5th Amend.) Generally, "[d]ouble jeopardy precludes reprosecution for an offense of which a defendant has been acquitted or to which jeopardy has otherwise attached. . . ." (People v. Davis (1995) 10 Cal.4th 463, 514, fn. 10; see also Illinois v. Vitale (1980) 447 U.S. 410, 415 [three guarantees of double jeopardy clause: no second prosecution for same offense after acquittal; no second prosecution for same offense after conviction; no multiple punishment for same offense].)
The fact that two criminal statutes proscribe the same conduct "does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes." (Missouri v. Hunter (1983) 459 U.S. 359, 368-369 [finding no double jeopardy for violating first degree robbery and commission of any felony through use of a deadly or dangerous weapon].) "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the Legislature intended." (Id. at p. 366.) The question is one of legislative intent; where the Legislature makes clear its intent to subject a defendant to conviction and sentence under both statutes, such cumulative punishment under several statutes in a single trial is permissible. (Ibid.) Here, the Legislature has made clear its intention that the firearm enhancement be imposed in addition to the punishment for the underlying offense.
D. Collateral estoppel
Appellant also argues that collateral estoppel can be applied to a sentencing proceeding in the same trial and should be applied here to prevent a 25-years-to-life sentence enhancement concerning only one criminal act.
"Collateral estoppel bars relitigation of an issue decided in a previous proceeding in a different cause of action if `(1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; and (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceeding." (People v. Davis, supra, 10 Cal.4th at pp. 514-515, fn. 10.)
The elements of collateral estoppel make clear that it has no application here. It bars relitigating an issue previously determined in an earlier action. There was no earlier action here and no attempt to relitigate an issue.
E. The Ireland Merger Doctrine
Appellant argues that the Ireland Merger Doctrine bars sentencing him for both attempted murder and use of a firearm. That doctrine precludes giving a felony-murder instruction based upon a felony which is an integral part of the homicide because it would preclude the jury from considering malice aforethought in all cases where the homicide has been committed as a result of a felony assault—"a category which includes the great majority of all homicides." (Ireland, supra, 70 Cal.2d at pp. 538-539.) Appellant claims this is analogous to the situation here, where discharge of the firearm was an integral part of the attempted murder. We disagree.
Appellant has cited no case, and we have found none, applying the Ireland Merger Doctrine to the sentencing of a defendant for conviction of attempted murder with a firearm use enhancement. Moreover, this doctrine has no logical application here. Imposing the firearm enhancement did not obviate the jurys responsibility to determine each element of attempted murder.
F. Due Process
Appellant argues that due process makes it fundamentally unfair to impose two life sentences on appellant for committing one wrongful act. Due process guarantees the fundamental fairness in the legal process. (See People v. Vasquez (2006) 39 Cal.4th 47, 61.) Contrary to appellants assertion, the trial court did not impose two life sentences for doing one wrongful act. It imposed a life sentence for attempting to murder Hernandez and a second for the manner in which the attempt was made, a method that the Legislature has determined presents a risk to the public that warrants additional punishment. This presented no fundamental unfairness to appellant.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.