Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. Super. Ct. No. F07900329
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
On appeal of his conviction of two counts of second-degree robbery, Charles Edward Turner argues ineffective assistance of counsel, prosecutorial misconduct, and sentencing error. We affirm the judgment.
BACKGROUND
Shortly after midnight on January 1, 2007, Turner and another man robbed two convenience store clerks at gunpoint. On May 5, 2008, a jury found Turner guilty as charged of two counts of second-degree robbery with personal use of a firearm. (Pen. Code, §§ 211, 212.5, subd. (c), 12022.53, subd. (b).) At a bifurcated court trial later that day, he admitted allegations of 12 serious-felony priors (§§ 667, subd. (a)(1), 1192.7, subd. (c)) within the scope of the three strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)), four serious-felony priors (§§ 667, subd. (a)(1), 1192.7, subd. (c)) within the scope of the five-year serious-felony-prior statute (§ 667, subd. (a)(1)), and two prison-term priors (§ 667.5, subd. (b)) within the scope of the one-year prison-term-prior statute (§ 667.5, subd. (b)).
Later statutory references are to the Penal Code except where otherwise noted.
On September 9, 2008, the court imposed an aggregate 65-to-life term on one robbery count (a 35-to-life term on the robbery consecutive to a 10-year term on the firearm enhancement consecutive to a five-year term on each of four serious-felony-prior enhancements) and a like aggregate concurrent term on the other robbery count.
DISCUSSION
1. Pretrial Photographic Identification
Turner argues that a suggestive pretrial photographic lineup created a substantial likelihood of irreparable misidentification and that his trial attorney’s failure to move to exclude the pretrial identification and the later in-court identifications constituted ineffective assistance of counsel. The Attorney General argues that Turner conflates two separate issues, that his identification argument fails to show that the lineup was suggestive, and that his ineffective assistance of counsel argument fails to show that the omission by his trial attorney showed inadequate performance or caused prejudice.
Before discussing the law, we turn to the record of the pretrial identification and the later in-court identifications that Turner challenges. During the robbery, one of the convenience store clerks recognized him as a customer who came to the store quite often, definitely to buy items like coffee and soda and possibly to cash a check. Two days after the robbery, he identified Turner’s photograph as the photograph of one of the robbers from among six photographs the police showed him. He told the police he was not 100 percent sure because the hairstyle was different. Three times later he testified in court, each time identifying Turner as one of the robbers. Turner made no motion to exclude the pretrial identification or the later in-court identifications.
On the basis of the testimony of forensic psychologist Robert Shomer, Turner argues two defects in the pretrial identification. First, “it was not a double-blind test, which would prevent the tester from unconsciously signaling a choice to the witness.” Second, “the photographs were presented simultaneously rather than sequentially, even though simultaneous presentation promotes the selection of whichever subject among those presented most closely resembles the perpetrator.”
The only cases that Turner cites in support of his argument are two pretrial orders from New York trial courts. (People v. Wilson (N.Y. Misc. 2002) 191 Misc.2d 224 [741 N.Y.S.2d 831] (Wilson); In re Thomas (N.Y. Misc. 2001) 189 Misc.2d 487 [733 N.Y.S.2d 591] (Thomas).) In Wilson, the trial court ordered a defendant to submit to a pretrial photographic lineup, granted his request that the lineup be double-blind, rejected his request that the lineup be sequential, and cast doubt on the science articulated in Thomas, which ordered a defendant to submit to a pretrial photographic lineup that was double-blind and sequential. (Wilson, supra, at pp. 831-834, criticizing Thomas, supra, 593-597.)
The due process clauses of both the federal constitution and the state constitution prohibit identification procedures that are “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384 (Simmons), citing Stovall v. Denno (1967) 388 U.S. 293, 301-302, overruled on another ground by Griffith v. Kentucky (1987) 479 U.S. 314, 320-328; People v. Nation (1980) 26 Cal.3d 169, 179.) The prospective pretrial orders in Wilson and Thomas are hardly persuasive authority for his retrospective intimation that an identification procedure that is neither double-blind nor sequential is intrinsically so impermissibly suggestive as to violate due process. On the issue of whether his pretrial photographic lineup specifically was impermissibly suggestive – which is the threshold requirement of a showing of a due process violation – he is silent.
“Surely, we cannot say that under all the circumstances of this case there is ‘a very substantial likelihood of irreparable misidentification.’ ([Simmons, supra, 390 U.S.] at p. 384.) Short of that point, such evidence is for the jury to weigh.” (Manson v. Brathwaite (1977) 432 U.S. 98, 116 (Brathwaite).) Even if scientific studies since Brathwaite have broadened our collective understanding of the strengths and weaknesses of eyewitness testimony, the courts are still in disagreement. (See, e.g., Wilson, supra, at pp. 831-834, criticizing Thomas, supra, at pp. 593-597.) With no showing in the record that his pretrial photographic lineup was impermissibly suggestive, Turner fails to persuade us of a violation of either due process clause. (See People v. Ochoa (1998) 19 Cal.4th 353, 411-413; cf. People v. Clark (1992) 3 Cal.4th 41, 135-136.)
Likewise, Turner fails to persuade us, on the state of the record, that his trial attorney’s failure to move to exclude the pretrial identification and the later in-court identifications constituted ineffective assistance of counsel. Since the law neither does nor requires idle acts (Civ. Code, § 3532), an attorney has no duty to make a futile request (People v. Anderson (2001) 25 Cal.4th 543, 587 (Anderson)).
2. Use Immunity Instruction
Turner argues that his trial attorney’s failure to request an instruction cautioning the jury about the credibility of a witness to whom the prosecution granted use immunity constituted ineffective assistance of counsel. The Attorney General argues the contrary.
At an evidentiary hearing outside the presence of the jury, the court engaged the prosecutor, Turner’s trial attorney, and counsel for Turner’s wife, Rebecca Epolite, in a colloquy about the scope of the confidential marital communication privilege. (Evid. Code, §§ 402, subd. (b), 980.) The understanding among court and counsel was that Epolite would refuse to testify about anything Turner told her about the robbery but would testify about her identification of him in surveillance photographs of the robbery. At the end of the hearing, Epolite testified she recognized him by the leather jacket and the reading glasses he wore in surveillance photographs taken during the robbery.
At the hearing, Turner’s trial attorney informed the court that on the day after the robbery Epolite told a police officer she and Turner went to a drug deal at a parking lot earlier that day and she had a handgun in her purse. Additionally, he informed the court that two days after the robbery Epolite told a police officer she was leaving Turner for another man and wanted nothing to do with him. Finally, he informed the court that four days after the robbery Turner was arrested for possession of drugs.
The court observed that if the prosecutor called Epolite as a witness the defense had a right to cross-examine her about “how she came to have a weapon on her person” and “whether that weapon was involved in some fashion in this robbery.” The decision whether to call her as a witness was the prosecutor’s, the court noted, but she could take the stand only on a grant of use immunity. Shortly before she took the stand, the prosecutor requested, and the court ordered, a grant of use immunity. (§ 1324.)
By the time Epolite took the witness stand at trial, Turner’s attorney apparently had taken to heart the court’s sage advice that cross-examination was at the defense’s own peril and that the ultimate decision about the risks of cross-examination was the defense’s to make. On direct examination, Epolite testified that she and Turner had been married for almost four years, that she had five felony priors (a 2001 petty theft with a prior, a 1998 fraud, a 1997 receiving stolen property, a 1993 auto theft, and a 1990 petty theft with a prior), and that she recognized Turner in surveillance photographs of the robbery by the leather jacket and the reading glasses he wore. On cross-examination, she testified only that she came to court under subpoena with mixed emotions and that she had a pending case in which she expected no leniency in return for her testimony. On redirect examination, she testified that an agency other than the district attorney’s office had brought the pending case. On recross-examination, she testified only that the pending case was not a civil case but a criminal misdemeanor case. Nothing in the record of her testimony disclosed to the jury that she had a grant of use immunity.
The Fifth Amendment to the United States Constitution precludes compelling a witness to give testimony which might subject him or her to criminal liability. Two kinds of immunity – use immunity and transactional immunity – have constitutional sanction. Use immunity protects a witness only against the actual use of his or her testimony and the fruits of that testimony, whereas transactional immunity protects him or her against later prosecution related to matters about which he or she testified. (People v. Campbell (1982) 137 Cal.App.3d 867, 872.)
Here, even though Epolite had a grant of use immunity, she testified to nothing under a grant of use immunity. Other than the documentation of her marriage and the impeachment with her priors, the only substance to her testimony was her identification of Turner in surveillance photographs of the robbery by the leather jacket and the reading glasses he wore. That was irrelevant to a grant of use immunity. Turner does not argue the contrary.
To establish ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient because counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Weaver (2001) 26 Cal.4th 876, 925.) Additionally, he or she must show that counsel’s act or omission caused prejudice. (Strickland, supra, at pp. 691-692; Weaver, supra, at p. 925.) Prejudice is shown if a defendant demonstrates a reasonable probability – a probability sufficient to undermine confidence in the outcome – that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (In re Sixto (1989) 48 Cal.3d 1247, 1257 (Sixto) [modified on another ground by People v. Duvall (1995) 9 Cal.4th 464, 479-486 & fn. 8], citing Strickland, supra, at p. 694.)
Turner argues that his trial attorney “had to be more cautious in his cross-examination of Epolite, to [Turner’s] probable detriment,” because if the jury had received instruction on use immunity his trial attorney “might have felt freer to question [her] about matters such as her drug use and gun possession, confident that the jurors would understand that [she] had good reason to want to please the prosecution, for her own legal problems would be alleviated by the use immunity granted her.” On the other hand, his trial attorney could well have chosen not to request a use immunity instruction to keep the jury from speculating how else Epolite knew Turner robbed the convenience store.
A defendant has a duty to show that counsel’s act or omission was not attributable to a tactical decision a reasonably competent and experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 610-611, citing Sixto, supra, 48 Cal.3d at p. 1257.) The reviewing court should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Here, since the record fails to show a reason for counsel’s act or omission, our duty is to reject Turner’s claim of ineffective assistance of counsel since there could well be a satisfactory explanation. (Anderson, supra, 25 Cal.4th at p. 569.)
3. Argument to the Jury
Turner argues, first, that the prosecutor’s argument misled the jury about the reasonable doubt standard and shifted the burden of proof to the defense and, second, that there was no forfeiture of his right of appellate review either because objection would have been futile or because the absence of an objection constituted ineffective assistance of counsel. The Attorney General argues the contrary.
Our duty on review of a prosecutorial misconduct issue is not to “‘lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21 [superseded by statute on another ground as stated by In re Steele (2004) 32 Cal.4th 682, 691], quoting Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.) We analyze Turner’s numerous assertions of prosecutorial misconduct accordingly. (Gonzalez, supra, at p. 1224, fn. 21.)
Shortly before the argument Turner puts at issue, the prosecutor made the following comments to the jury: “Counsel’s case and counsel’s argument has only one purpose, to try to discredit the People’s case. There was no evidence brought to this jury about the events in questions by the defense. You heard from the defendant’s wife. You heard from, in the People’s case, the two clerks. It’s allowed. The People can argue as to witnesses that could have been brought that are logical witnesses. [¶] Well, if counsel is saying the defendant is not the robber, where is a witness to say where he was at the time? There is no such witness. Well, there is one that can tell you exactly where he was at the time. It’s the Hispanic male adult who he robbed the store with. But I’m sure that’s not exactly a good alibi for this type of case.”
At that juncture, Turner’s trial attorney objected “to the prosecutor’s inappropriate argument.” The court immediately admonished the jury that “the prosecution has the burden of proof. The defense doesn’t have to prove the defendant is not guilty. You know that.” The record of an immediate admonition after an objection to the prosecutor’s argument belies Turner’s claim that objection would have been futile. The record shows no later objection during the argument Turner challenges on appeal.
Immediately before the argument at issue, the prosecutor made the following comments to the jury: “This case is about identification. There’s – it’s uncontested that a robbery with a gun happened. And a gun was used. All the evidence in this case points to Charles Turner, the defendant, as the person who committed that robbery.” At that juncture, the prosecutor argued:
“Counsel brought up a point to you. He talked about circumstantial evidence. And he talks about that reasonable or unreasonable thing. Now, the law is that only applies to circumstantial evidence. And that what he was talking about before in that – if you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to innocence and the other points to guilt, you must accept the one that points to innocence. He tries to say that it should apply to everything. That is not the case. The law as [sic] it only applies to circumstantial evidence.
“Circumstantial evidence – for example, like the defendant’s wife saying that that’s him in the picture. What her testimony is is direct evidence. But what she’s telling you is that he did the robbery because he’s the one in the picture. And because he’s the one in the picture that’s the circumstantial evidence. That’s the link. That’s the inference you can make by her telling you that her husband is in this picture. And said, you know, the person in the picture did the robbery. It’s substantially proven that he did the robbery.
“What’s this unreasonable conclusion – I’m sorry. What other conclusion can you come to? Because that’s the circumstantial evidence in this case, her testimony. Everything else is direct.
“Now, counsel wants you to apply to the whole case. Another part that he forgot to mention is that, however, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable. So if you take that on the whole case, accept reasonable conclusions on the evidence you’ve heard, the defendant is guilty. Except the unreasonable. I’m sorry.
“The actual wording is reject any that are unreasonable. Unreasonable conclusion here? The defendant didn’t do it. Yes, he did.”
Moments later, the prosecutor made other comments that Turner likewise puts at issue on appeal: “Ladies and gentlemen, counsel trys [sic] to make reasonable doubt to be this fantastic burden that can’t be met. Reasonable doubt is the burden, but it’s been given in this case. The case has been proven beyond all reasonable doubt. Do not – do not be intimidated by that burden. [¶] Jurors all over America every day make that – use that burden to find people guilty.”
Like the prosecutor’s arguments that Turner challenges on appeal, his own appellate briefing is hardly a model of legal precision. After characterizing Epolite’s identification of Turner from the surveillance photographs as “direct evidence” and the ensuing inference that the person in those photographs was the robber as “circumstantial evidence,” the prosecutor argued, “Everything else is direct.” Everything else in her testimony? Or everything else in the case? Presumably he meant the former, as he corrected “this case” to “her testimony” at once: “Because that’s the circumstantial evidence in this case, her testimony. Everything else is direct.”
Turner’s congruently ambiguous appellate briefing implies that the convenience store clerk’s testimony was circumstantial evidence since the jury had to make a “choice between the inferences that his observations of the robbers were, and that they were not, affected by weariness, as he had been working for ten hours straight.” Yet the clerk’s testimony “directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact,” so it was direct, not circumstantial evidence. (Evid. Code, § 410.) As the prosecutor apparently misspoke, so Turner apparently conflates the jury’s duty to weigh the evidence, whether circumstantial or direct, with circumstantial evidence.
Additionally, Turner asks us to view not only the prosecutor’s characterizing his guilt as “substantially proven” but also his characterizing the burden of proof beyond a reasonable doubt as how jurors all over America find people guilty every day as lowering the burden of proof below the constitutional reasonable doubt requirement. Yet he does not challenge the reasonable doubt instruction, with which the court informed the jury of the constitutional burden of proof. Jurors are presumed able to correlate, follow, and understand the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Acknowledging the court’s admonition to the jury after his trial attorney objected “to the prosecutor’s inappropriate argument,” Turner nonetheless argues that the court’s admonition was “not likely to have made a stronger impression in the jurors’ minds than the prosecutor’s misleading statements.” A prosecutor’s argument is an advocate’s point of view that generally carries less weight with a jury than a court’s instruction, which is a binding and definitive statement of the law. (Boyde v. California (1990) 494 U.S. 370, 384-385 (Boyde).) “We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.)
Turner fails to persuade us that the prosecutor’s comments misled the jury about the reasonable doubt standard and shifted the burden of proof to the defense and that objection would have been futile. So the general rule applies to preclude his arguing prosecutorial misconduct on appeal. (People v. McDermott (2002) 28 Cal.4th 946, 1001 (McDermott), citing People v. Hill (1998) 17 Cal.4th 800, 820.)
Even if Turner had preserved his right of appellate review, the record discloses no prosecutorial misconduct. He fails to show prejudice justifying reversal under the state law test requiring a reasonable likelihood of a more favorable verdict in the absence of the challenged conduct. (People v. Cook (2006) 39 Cal.4th 566, 608.) Assuming without deciding that the prosecutor did err, we conclude that his argument was harmless beyond a reasonable doubt under the test pertaining to error of federal constitutional dimension. (Ibid., citing Chapman v. California (1967) 386 U.S. 18, 24.)
Finally, we reject Turner’s claim that the absence of objections by his trial attorney constituted ineffective assistance of counsel. The record does not show the reasons for his trial attorney’s acts or omissions, so his claim is more appropriate to a habeas corpus proceeding. (McDermott, supra, 28 Cal.4th at p. 1002, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
4. Five-Year Serious-Felony Priors
Turner argues that he admitted three, but that the court sentenced him on four, serious-felony priors within the scope of the five-year serious-felony-prior statute. The Attorney General argues that he admitted all four.
The specific question before us is whether Turner admitted one (as he argues) or two (as the Attorney General argues) 1982 San Joaquin County robbery priors that were, as required by subdivision (a)(1) of section 667, “brought and tried separately.” The validity of his other two five-year serious-felony priors, both from Fresno County, is not in dispute.
In relevant part, the statute provides: “… [A]ny person convicted of a serious felony who previously has been convicted of a serious felony … shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” (§ 667, subd. (a)(1), italics added.)
While the jury was deliberating on the two robberies, the court asked Turner’s trial attorney, in Turner’s presence, if he had “made any decisions what he wants to do about these priors.” Turner’s trial attorney replied, “He’ll admit them.” Shortly after the jury found him guilty as charged and left the courtroom, the court reminded him that he had “a right to a trial by the court concerning these allegations about prior convictions” and asked him, “Do you understand that, sir?” Turner replied, “Yes, I do.” The court asked him, “And you understand if you make an admission concerning all of these allegations about priors you’d be giving up that right to a court trial?” He replied, “I understand.”
The allegations to which the court, Turner’s trial attorney, and Turner alike referred appeared in information as follows:
“Conv Date
Charge
Court Case #
Court
“01
26
1982
PC211
32780
San Joaquin Superior Ct.”
| “Conv Date | Charge | Court Case # | Court | ||
| “01 | 26 | 1982 | PC211 | 32778 | San Joaquin Superior Ct.” |
After the court finished taking Turner’s waiver of a court trial on the allegations about priors, the following colloquy ensued:
sic“THE DEFENDANT: I admit it.
“THE DEFENDANT: That’s correct.
“THE DEFENDANT: Yes.
“THE DEFENDANT: That’s true, sir.
“THE DEFENDANT: That’s correct.
After Turner admitted two serious-felony priors from Fresno County within the scope of the five-year serious-felony-prior statute, the transcript of the sentencing hearing shows the following:
sic“THE PROSECUTOR: Your Honor, is that as to the 667(a)(1) as to two 1982 cases?
“THE PROSECUTOR: Thank you.”
In short, the information alleged that Turner suffered two serious-felony priors, one in San Joaquin Superior Court case number 32778, the other in San Joaquin Superior Court case number 32780, and that each was a serious-felony prior “within the meaning of Penal Code Section 667(a)(1).” (Italics added.) The court asked his trial attorney, in his presence, if he had decided what “to do about these priors.” (Italics added.) His trial attorney replied, “He’ll admit them.” (Italics added.) Shortly afterward, the court asked him if he understood that he had “a right to a trial concerning these allegations about prior convictions,” and he replied, “Yes, I do.” (Italics added.) Asked about his intent to “make an admission concerning all of these allegations about priors,” he acknowledged he would be giving up his right to a court trial. (Italics added.) On that record, his ensuing admission of two San Joaquin Superior Court serious-felony priors was within the scope of the “brought and tried separately” requirement of section 667, subdivision (a)(1). (See People v. Wiley (1995) 9 Cal.4th 580, 589-590.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Ardaiz, P.J., Wiseman, J.