Opinion
F076993
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. BASILIO USI, Defendant and Appellant.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. DF013018A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Robert S. Tafoya, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In an information filed September 26, 2017, the Kern County District Attorney charged defendant with second degree robbery (count 1; Pen. Code, § 212.5, subd. (c)) with a deadly weapon use enhancement (§ 12022, subd. (b)(1)), assault with a deadly weapon (count 2; § 245, subd. (a)(1)) and carrying a concealed dirk or dagger (count 3; § 21310).
All further statutory references are to the Penal Code unless otherwise stated.
A jury convicted defendant on all charges and found true the deadly weapon use allegation relating to count 1.
The court sentenced defendant to the midterm of three years on count 1 (robbery) plus one year for the deadly weapon enhancement (§ 12022, subd. (b)(1)); plus, a stayed (§ 654) two-year term on count 2 (assault with a deadly weapon); plus, a stayed (§ 654) term of 16 months on count 3 (carrying a concealed dirk or dagger).
On appeal, defendant raises several challenges related to his victim's pretrial identifications of him as the robber. He also contends the court committed instructional error. We reject defendant's claims and affirm.
FACTS
Trial Testimony
Victim's Testimony
C.V. testified that early on the morning of September 5, 2017, she walked her children to school. C.V. observed defendant with a blue bicycle near her apartment. After dropping her children off at school, C.V. began walking back home. Someone approached C.V. from behind, grabbed her, and held a blade to her throat. C.V. saw that the man was defendant, whom she had seen earlier on the way to her children's school.
Defendant pulled C.V.'s purse off her shoulder and threw it to the ground. The two "struggled" and defendant "hit" C.V. with a blade. C.V. suffered a wound to her left hand from defendant's blade. Defendant took the purse and rode away on his bicycle. The purse had $20 inside.
C.V. testified that defendant was wearing a shirt that left certain tattoos exposed. C.V. indicated defendant had dark tattoos on his left and right outer forearms.
C.V. ran and told a friend that she had been attacked. C.V. went to the emergency room, where she had a seizure.
Police officers came to speak with C.V. at the hospital. She told them her attacker was a "male ... , 5'7" to 5'8", 25 to 30 years of age, bald head, tattoos on both arms." After receiving that information, officers returned to the scene of the crime and began looking for evidence. While patrolling the area, officers came across defendant and two others. There was a blue bicycle leaning against the fence a couple feet from defendant. Officers observed defendant was bald and had tattoos on both of his arms. Officer Domingo Bursiaga searched defendant and located a "blade or dagger-like knife" in his right rear pocket. The knife was concealed and could not be seen without manipulating defendant's clothing.
Later that day, a police officer showed C.V. a photographic lineup with six photographs. C.V. "immediately" pointed to defendant's photograph and circled it.
Defense Case
Defendant denied robbing C.V. He testified that his bicycle is white and his girlfriend, Normita's, bicycle is red. He denied ever riding the blue bicycle C.V. identified.
John S. testified he saw defendant at his grandmother's house "around 8:00 to 10:00" in the morning. Defendant's good friend, Dominador Guevara Junior, testified that defendant remained at the premises from "[a]pproximately like 8:00 until 10:00 [a.m.] ...."
Delfin Capalac Junior testified defendant spent the night of September 4, 2017, in his van. Defendant left the van at 7:30 in the morning of September 5, 2017.
Capalac saw defendant and Normita again between noon and 1:00 p.m. that day. Defendant was riding a white bicycle and Normita was riding a red bicycle. Sometime later, the police arrived and asked where the owner of the bicycles outside was. Capalac went inside his van to retrieve defendant, who was eating about 24 feet away from where Capalac had been. Police officers then searched defendant.
Rebuttal
Officer Bursiaga testified that he had made contact with defendant around three times before the date in question. On one of those occasions, defendant was riding the same blue bicycle C.V. identified as the one her attacker rode.
C.V. testified that she left her house before 7:40 a.m. that day, and that it takes maybe three to five minutes to walk her children to school. After dropping her kids off at school, C.V. immediately began walking home.
Closing Argument
In closing argument, defense counsel claimed defendant was the only Filipino depicted in the six-photograph lineup. Counsel argued to the jury that the lineup was "flawed, very flawed, very suggestive."
Preliminary Hearing Testimony
C.V. testified at the preliminary hearing on September 21, 2017. After describing the attack, the following exchange occurred:
"[C.V.:] He grabbed me from behind.
"[Prosecutor:] Is that individual present here today in court?
"[C.V.:] No.
"[Prosecutor:] You do not see the person who did that to you here today in court?
"[C.V.:] No."
C.V. testified similarly on cross-examination.
On redirect examination, the following exchange occurred:
"[Prosecutor:] Ma'am - ma'am, from where you're sitting right now, can you see everyone in the courtroom?
"[C.V.:] Yes.
"[Prosecutor:] You can see the judge and you can see every single person in this courtroom you can see from where you're sitting? Your view is not obstructed in any way?
"[C.V.] A little bit.
"[Prosecutor:] You have an obstructed view from where you're sitting?
"[C.V.:] A little.
"[Prosecutor:] Okay. Since your view is obstructed, I'd ask - I would ask that you stand up and then tell me if you can see everyone in the courtroom when you stand up so that your view is not obstructed. Can you do that? And tell me if your view is obstructed when you stand up.
"Now that you're standing up, can you - with - with no obstruction on your view, see everyone in the courtroom?
"[C.V.:] Yes.
"[Prosecutor:] Is the individual who took your purse here in court right now?
"[C.V.:] Yes.
"[Prosecutor:] Can you point to that individual and describe what he's wearing? [¶] ... [¶]
"[C.V.:] (Pointing.)
"[Prosecutor:] And what is he wearing?
"[C.V.:] It is a brown suit.
"[Prosecutor:] Where is the individual located?
"[C.V.:] On the right side.
"[Prosecutor:] Will the record identify that the witness has identified the defendant?
"THE COURT: It will reflect that, yes."
Photographic Lineup
When asked why she selected defendant's photograph from the lineup shown to her by police on the day of the incident, C.V. testified: "Because that was the face - when we were struggling, I turned around and I saw his face." When she was again asked why she selected the photograph, C.V. said, "Because, yes, the face is round. It's round and he is Filipino, yeah."
C.V. also testified that she had seen defendant before the date of the robbery.
Suppression Motion Hearing
Defendant moved to suppress evidence of the knife found on his person. At a hearing on the motion before trial, Officer Bursiaga testified that C.V. described the suspect as "[a]pproximately 5'7" to 5'8", Filipino male adult, bald head, tattoos on both arms."
DISCUSSION
I. Identification Issues
Defendant raises several challenges related to C.V.'s pretrial identifications. Specifically, he contends: (1) defendant was the only Filipino depicted in the photographic lineup C.V. was shown on the day of the incident; and (2) C.V. initially failed to "recognize" defendant at the preliminary hearing and only "succumbed" to identifying defendant because the prosecutor "badgered" her.
A. Defendant Forfeited His Claim that Victim's Pretrial Identifications Were Improper
When a defendant fails to offer a timely objection to evidence of a witness identification, the issue is forfeited on appeal. (See People v. Cunningham (2001) 25 Cal.4th 926, 989.) Defendant acknowledges he failed to seek suppression of the evidence of C.V.'s identifications, and similarly failed to object at the preliminary hearing to what he refers to as "the prosecutor's impermissibly suggestive identification procedure." Accordingly, we find the issue forfeited. (See ibid.)
B. Defense Counsel was not Constitutionally "Ineffective"
Defendant claims his trial counsel was ineffective for failing to explore and preserve the issues surrounding C.V.'s identifications.
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Id. at p. 697.)
For the reasons set forth below, we conclude counsel was not ineffective.
We also deny defense counsel's request for expansion of appointment to include preparation of a writ of habeas corpus or writ of mandate.
1. Photographic Lineup
When a defendant claims a lineup was unfair, he or she bears the burden of showing "such unfairness as to give rise to a substantial likelihood of misidentification ...." (People v. York (1980) 108 Cal.App.3d 779, 787.)
When a defendant claims physical differences between him and the other participants rendered a lineup impermissibly suggestive, "[t]he question is whether anything caused defendant to 'stand out' from the others in a way that would suggest the witness should select him. [Citation.]" (People v. Carpenter (1997) 15 Cal.4th 312, 367 abrogated by statutory amendment on other grounds as stated in People v. Diaz (2015) 60 Cal.4th 1176.) While there should be some similarity in appearance between the defendant and other photographs, " 'there is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance.' [Citation.]" (People v. Blair (1979) 25 Cal.3d 640, 661.)
Defendant repeatedly claims he was the "only Filipino male" depicted in the photographic lineup. Even assuming it is true, it is not dispositive. The ultimate question is whether defendant stood out in the photographic lineup in a suggestive manner that gave rise to a substantial likelihood of misidentification. Several factors can bear on this ultimate issue including, but not limited to, size, gender, age and race. However, members of different ethnic identities do not always look so significantly different from one another as to render improper their inclusion in a single lineup.
Defendant supports this claim with a citation to his own counsel's closing argument.
This is not to say that the racial makeup of a lineup is irrelevant. Where defendant is the only member of a particular race depicted in a lineup and that fact makes him "stand out" compared to the photographs of the other individuals in the lineup - the lineup would likely be unduly suggestive. Here, however, defendant did not "stand out" from the other photographs used in the lineup.
Moreover, even when there are notable physical discrepancies between the individuals used in a lineup, those differences may not come across in the photographs used for the lineup. For example, in People v. Blair, supra, 25 Cal.3d 640, the individuals depicted in the lineup actually weighed significantly less than the defendant. (Id. at pp. 658, 661, fn. 16.) However, in the photographs used for the lineup, the defendant "[did] not appear to be significantly ... heavier ... than the other participants." (Id. at p. 661, fn.omitted.)
Similarly, here, even if defendant was the only Filipino depicted, that fact would only be material if it made his photograph "stand out" compared to the other photographs in the lineup so as to create a substantial risk of misidentification. We have viewed the photographic lineup and conclude that defendant did not "stand out" so as to suggest the victim should select him. Consequently, cases like People v. Caruso (1968) 68 Cal.2d 183, are distinguishable as they involved lineups with people who "did not physically resemble defendant." (Id. at p. 187, fn. omitted.) Because defendant's photograph did not stand out, counsel was not ineffective for failing to object to, or seek exclusion of, the photographic lineup evidence; nor for failing to seek discovery regarding the race of each lineup participant.
Defendant notes that C.V. referenced his race when explaining why she selected his photograph. However, that was only after C.V. said the reason for selecting his photograph was: "Because that was the face - when we were struggling, I turned around and I saw his face." (Italics added.)
2. Identification at Preliminary Hearing
Defendant also makes several challenges related to C.V.'s identification of him at the preliminary hearing.
Defendant argues the prosecutor "urged" C.V. to identify defendant. Not so. C.V. stated on several occasions she did not see her attacker in the courtroom. Later, C.V. said her view of the courtroom was a "little" obstructed. She stood up at the prosecutor's invitation, and the prosecutor then asked if she could see everyone in the court room. After C.V. responded affirmatively, the prosecutor asked if she saw the individual who took her purse. After she again responded affirmatively, the prosecutor asked her to point to the individual and describe his clothing. She identified defendant. In no way did the prosecutor "urge[]" C.V. to identify defendant.
Defendant says the prosecutor suggested a "phantom obstruction" and the victim "played along." This assertion has no support in the record. And if the victim was not testifying truthfully and was simply "playing along" with whatever the prosecutor wanted then presumably the victim would have identified defendant immediately.
Defendant also says that if there had truly been an obstruction, the prosecutor would have identified it. However, the only fact about the obstruction that is relevant is whether it was impeding C.V.'s view of everyone in the courtroom. Otherwise, the nature of the obstruction was irrelevant.
However, while the prosecutor did not urge C.V. to identify defendant, we acknowledge that it was likely clear who the prosecutor believed the perpetrator was. After all, defendant was sitting in a courtroom, presumably at the defense table. But that is true of essentially every in-court identification. We decline to endorse reasoning that would render virtually all in-court identifications invalid. Because an objection to C.V.'s identification during the preliminary hearing would have been meritless, counsel was not ineffective for failing to object or for failing to make more of a record on the issue.
Additionally, because we find no impropriety in the lineup identification or the preliminary hearing identification, we need not consider whether either identification improperly "tainted" C.V.'s identification during trial.
3. Cross-racial Identification
Defendant contends counsel was ineffective for not presenting the jury with expert testimony undermining C.V.'s identification because she is a different race than defendant. But there is no way to know how such an expert would have testified. Thus, while calling such an expert could have benefitted defendant, there was a risk the potential expert testimony could have been harmful. For example, an expert might opine on cross-racial identification error generally, but also conclude that the risks of such error were mitigated here for some reason (e.g., because defendant's photograph did not "stand out" from the others in the lineup). Defense counsel could have reasonably concluded that calling an expert was not worth the risk. Because there are potential tactical reasons for declining to call an expert, we cannot conclude counsel acted ineffectively.
Defendant also argues that counsel was ineffective for failing to consult with such an expert. However, defendant cites to nothing in the record establishing that defense counsel did not consult with an expert. We therefore reject this claim. (See People v. Datt (2010) 185 Cal.App.4th 942, 952-953.)
4. Eyewitness Identification Instruction
Defendant also contends counsel was ineffective for failing to request an eyewitness identification instruction such as CALJIC 2.92 or CALCRIM No. 315.
C. Law
The parties agree that courts have no sua sponte duty to instruct on eyewitness identification. (See People v. Richardson (1978) 83 Cal.App.3d 853, 862 disapproved on other grounds by People v. Whitmer (2014) 59 Cal.4th 733, 741.) However, an eyewitness identification instruction " 'should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.' [Citation.]" (People v. Reed (2018) 4 Cal.5th 989, 1009-1010.)
The issue here, however, is not whether counsel would have been entitled to an instruction had he requested it. Rather, the question is whether counsel was prejudicially ineffective for failing to request the instruction. And on that issue, we may not reverse unless there is no conceivable tactical purpose for counsel's omission. (People v. Lewis (2001) 25 Cal.4th 610, 674-675.)
D. Analysis
CALCRIM No. 315 provides:
"You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.
"In evaluating identification testimony, consider the following questions:
"• Did the witness know or have contact with the defendant before the event?
"• How well could the witness see the perpetrator?
"• What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation[, and <insert any other relevant circumstances>]?
"• How closely was the witness paying attention?
"• Was the witness under stress when he or she made the observation?
"• Did the witness give a description and how does that description compare to the defendant?
"• How much time passed between the event and the time when the witness identified the defendant?
"• Was the witness asked to pick the perpetrator out of a group?
"• Did the witness ever fail to identify the defendant?
"• Did the witness ever change his or her mind about the identification?
"• How certain was the witness when he or she made an identification?
"• Are the witness and the defendant of different races?
"• [Was the witness able to identify other participants in the crime?]
"• [Was the witness able to identify the defendant in a photographic or physical lineup?]
"• [<insert other relevant factors raised by the evidence>.]
"• Were there any other circumstances affecting the witness's ability to make an accurate identification?
"The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty." (CALCRIM No. 315.)
CALCJIC No. 2.92 similarly sets forth a list of factors for jurors to consider in evaluating eyewitness testimony.
Defendant emphasizes the fact that this instruction would have told the jury to consider any difference in race between the victim and defendant. True, but the instruction would have also told the jury to consider other factors arguably favorable to the prosecution. For example, it would have told the jury look to whether the victim had seen the defendant before. Since C.V. saw defendant on the way to drop off her children before being attacked on her way back, this arguably could have bolstered the identification. Additionally, the instruction tells jurors to consider how much time elapsed between the incident and the identification. And since C.V. picked defendant out of a photo lineup later that same day, this factor also arguably supports the prosecution's position. Since defense counsel could have reasonably concluded that the eyewitness instruction, in its totality, would not have been a "net gain" for his case, he could have made the reasonable, tactical decision not to request it. While appellate counsel would analyze these factors differently, trial counsel could have reasonably disagreed and made a contrary tactical decision. Because there is a conceivable tactical reason for counsel's omission, we cannot reverse the conviction.
II. Defendant has Not Shown Prejudicial Instructional Error
Section 21310 applies to "any person ... who carries concealed upon the person any dirk or dagger ...." (§ 21310.) The court instructed the jury on the elements of this crime but did not offer any specific definition of the word "carries" or "carry."
"When a term is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request. [Citation.]" (People v. Bonin (1988) 46 Cal.3d 659, 698, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
A. The Word "Carries" as Used in Section 21310 Does not Limit the Statute's Reach to Public Property
The Attorney General argues that the word "carries" has no technical or peculiar meaning and therefore the court was not required to define it.
Defendant counters that the term "carries" as used in section 21310 is a "technical term" with a definition different than its "everyday meaning." Specifically, defendant argues the term "carries" means "to "carry it about thereon" in someplace other than ones' residence or on private property."
We disagree. First, nothing in the term "carries" restricts its application to a specific type of location (e.g., private vs. public property). Specifically, nothing in the definition of "carries" suggests it can only occur off of private property. Items can be "carried" on private property just as they can be carried on public property.
Defendant cites to People v. Overturf (1976) 64 Cal.App.3d Supp.1 (Overturf), where the appellate department of the superior court interpreted former section 12031. But that statute specifically said, " '... Nothing in this section shall prevent any person ... in lawful possession of private property from having a loaded firearm on such property.' " (Overturf, at p. 3.) Even in Overturf, it was not the definition of "carries" that limited the statute's applicability on private property. Instead, that limitation was created by other statutory language expressly relating to private property.
Nor does anything in the phrase "carries concealed upon the person" establish a requirement that the defendant be moving while the dirk or dagger is concealed on his person.
B. The Phrase "Carries Concealed Upon the Person" in Section 21310 Does not Require the Defendant to be "Holding" or "Bearing" the Dirk or Dagger in Their Hand
Overturf did proceed to describe a difference between the terms " 'carrying' " and " 'having.' " (Overturf, supra, 64 Cal.App.3d Supp.1 at p. 6.) It noted that "in the context of statutes concerned with firearms" to " 'carry' " means "holding or bearing arms" while " 'having' " means " 'owning, possessing, or keeping.' " (Ibid., italics added, fn. omitted.)
We will momentarily assume for the sake of argument that the word "carries" - when standing alone - means something more than mere possession, and instead requires that the defendant actually "hold" or "bear" the weapon in their hands. However, section 21310 does not use the word "carries" alone. It uses the phrase, "carries concealed upon the person." This phrase clearly encompasses some situations where the weapon is not being held in the defendant's hands, such as when the weapon is in a pocket, tucked in a waistband, or placed in a holster under clothing. Thus, the language of section 21310 makes clear that "holding" or "bearing" a dirk or dagger is not the only way to satisfy its actus reus requirement; concealed possession of the dirk or dagger anywhere on defendant's person is sufficient. No reasonable reading of the phrase "carries concealed upon the person" would exclude a weapon hidden in or under the defendant's clothing merely because the defendant was not holding it in his or her hands.
III. Defendant has not Shown the Court Erred in Failing to Give a Unanimity Instruction on Count 3
Defendant contends the court erred in failing to give a unanimity instruction as to count 3.
Jury verdicts in criminal cases must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) The jury must agree unanimously the defendant is guilty of a specific crime. (Ibid.) To ensure this mandate is satisfied, the court must require the jury to agree on the same criminal act. (Ibid.) The pattern unanimity instruction informs the jury not to convict defendant unless all jurors "agree on which act [defendant] committed." (CALCRIM No. 3500.) Defendant argues here that the court erroneously failed to give a unanimity instruction pertaining to count 3.
Or, if the prosecutor makes an express election as to which criminal act is being prosecuted, the unanimity instruction is not necessary.
Of course, a unanimity instruction is only required where there is evidence of more than one discrete crime. (See Russo, supra, 25 Cal.4th at p. 1132 [unanimity instruction or prosecutorial election required "when the evidence suggests more than one discrete crime ..."]; People v. Wolfe (2003) 114 Cal.App.4th 177, 184.) As explained below, we conclude there was only evidence of one discrete crime as to count 3, and therefore no unanimity instruction was required.
The prosecutor began his closing argument by summarizing each count. As to count 3, the prosecutor stated:
"And the third felony count is the defendant possessed a concealed dirk or dagger, which is dirk or dagger meaning a sharp instrument that can be used - readily used in that manner. And it was substantially concealed. [¶] In this case we know from the officer when he contacted the defendant that it was fully concealed in the defendant's back pocket."
Defendant argues that his alleged concealed possession of the blade during Officer Bursiaga's search was not the only discrete criminal act that could have been the basis for count 3. He contends that another "distinct" act was "when [defendant] used the knife to rob the victim." The Attorney General counters that defendant's use of the knife during the robbery was not a second discrete act because there was no evidence the knife was concealed at that time.
Defendant disagrees, pointing to the lack of evidence that C.V. saw a knife before being attacked. He says this lack of evidence "support[s]" the "element" of concealment. Even assuming such lack of evidence can support an element of a crime, C.V. testified that defendant attacked her from behind. Thus, the fact that C.V. did not see a blade before being attacked does not establish, or even support an inference, that it was in fact concealed.
This case is unlike People v. Fuentes (1976) 64 Cal.App.3d 953, where there was evidence as to where the dirk was during the attack. Specifically, there was evidence "the dirk was in [the defendant's] waistband." (Id. at p. 955.) A jury could reasonably conclude that evidence a dirk was in a "waistband" raises an inference that it was concealed.
Here, there is no substantial evidence as to where the blade was immediately prior to the attack.
Consequently, there was only evidence of one discrete act to which count 3 could apply: Defendant's concealed possession of the blade during Office Bursiaga's search. As a result, no unanimity instruction was required.
DISPOSITION
The judgment is affirmed.
POOCHIGIAN, J. WE CONCUR: LEVY, Acting P.J. MEEHAN, J.