Opinion
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Anita H. Dymant, Judge, Los Angeles County Super. Ct. No. BA278038.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
H. Russell Halpern, for Defendant and Appellant.
OPINION
RUBIN, ACTING P. J.
Defendant Jose Valle appeals his conviction for second degree burglary and aggravated assault. His sole contention is that his attorney provided him ineffective assistance of counsel by failing to call an expert witness on eyewitness identification. Based on the record before us, that contention is cognizable only by a writ of habeas corpus. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As defendant’s appeal addresses solely his counsel’s performance at trial, we need not recite the underlying facts in much detail. Sufficient for our purpose, defendant and a confederate, Gerald Riley, were accused of attacking Angel Ramirez outside of a store at 43rd and Figueroa. Ramirez had gone to the store to purchase tortillas and his path was blocked by defendant and Riley. Defendant asked for money. Seeing that Riley was holding a knife, Ramirez gave Riley his money. At that point, defendant hit Ramirez in the face, Ramirez fell to the ground, and defendant and Riley proceeded to hit and kick him.
After a bystander briefly intervened, Ramirez got to his feet and walked into the store with defendant. Defendant assisted Ramirez in getting cleaned up with some paper towels and paid the cashier for the tortillas that Ramirez purchased. Riley remained outside, observed the two men in the store for a few moments, and then Riley and defendant left in close proximity to each other. They walked down Figueroa, entered an apartment complex and eventually were apprehended by police who had been searching the area via helicopter. Ramirez positively identified defendant and Riley as his assailants.
Defendant testified that he was present at the scene but far from attacking Ramirez, he actually came to Ramirez’s aid. Defendant said he saw two people, one of whom was Riley, beating and kicking Ramirez; defendant intervened; the other man left immediately; defendant assisted Ramirez; Riley followed defendant a few minutes later as he left the scene. Ramirez acknowledged he and Riley were arrested near each other.
Defendant’s first trial ended in a hung jury, with a 10-2 deadlock in favor of guilt. A second jury convicted defendant of both counts. The record does not reveal the disposition of the charges against Riley, although during the trial there was a suggestion that in a separate trial he was convicted of at least some of the charges.
DISCUSSION
1. The Legal Standard for Ineffective Assistance of Counsel
The test for ineffective assistance of counsel emanates from decisions of both the United States and California Supreme Courts. We consider “ ‘whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1189, citing Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217.) A reviewing court will presume that counsel was competent and that his conduct was the basis of sound tactical decisions. (Ibid.) Accordingly, the burden is on the defendant to demonstrate that his or her attorney was inadequate under the constitutional standard. (Strickland v. Washington, supra, at p. 687.)
The defendant’s first hurdle is less a substantive one than a principle of appellate practice. “If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.” (People v. Carter, supra, 36 Cal.4th at p. 1189.) Otherwise, the claim may be raised only by a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Actions taken or not taken by counsel at a trial are “typically motivated by considerations not reflected in the record. It is for this reason that writ review of claims of ineffective assistance of counsel is the preferred review procedure. Evidence of the reasons for counsel’s tactics, and evidence of the standard of legal practice in the community as to a specific tactic, can be presented by declarations or other evidence filed with the writ petition.” (In re Arturo A. (1992) 8 Cal.App.4th 229, 243; see also People v. Mendoza Tello, supra, at pp. 266-267.) An ineffective assistance claim may be reviewed on direct appeal only where “there simply could be no satisfactory explanation” for trial counsel’s action or inaction. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.)
2. Defendant’s Ineffective Assistance of Counsel Claim Raises Tactical Questions Which Cannot Be Resolved on Appeal.
Defendant argues that counsel was incompetent because he failed to call an expert witness on the subject of the vagaries of eyewitness identification. Since Ramirez was the only witness who testified to the altercation between Ramirez and defendant, eyewitness identification was arguably the single contested piece of evidence. Defendant conceded that Ramirez had been robbed and assaulted: he saw it, he helped break it up, and he tended to Ramirez’s wounds. The store cashier’s identification of defendant did not prove anything because defendant admitted he walked into the store with Ramirez and helped him get paper towels to wipe off his bloody face. Defendant and Ramirez both testified that defendant even paid for the tortillas that Ramirez purchased. Defendant also agreed that he and Riley were arrested near each other a few blocks from the crime scene.
Defendant correctly argues that expert testimony on the potential weaknesses of eyewitness identification is admissible in the proper case. (See People v. McDonald (1984) 37 Cal.3d 351, 369-376, overruled on another point in People v. Mendoza (2000) 23 Cal.4th 896, 914.) Arguably this was such a case. It does not follow, however, that the failure to call an expert is ineffective assistance of counsel. The decision to call a witness is generally a matter of trial tactics, and a reviewing court generally will not “second guess” this decision. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058-1059.) An appellant must also “do more than surmise that defense experts might have provided more favorable testimony.” (People v. Lucas (1995) 12 Cal.4th 415, 448, fn. 5 [blood and fingerprint evidence; italics in original].)
Here, the appellate record does not enable defendant to assert ineffective assistance of counsel for the following reasons:
First, there is nothing in the record to suggest that any expert would have given testimony that might have undercut Ramirez’s identification of defendant. Although we agree that testimony on the subject is generally admissible (People v. McDonald, supra, 37 Cal.3d at pp. 369-376), often the focus of that evidence is on weaknesses in cross-racial identification. (See, e.g. People v. Mitchell (2003) 110 Cal.App.4th 772, 781; CALCRIM No. 351, ¶ 12.) There is nothing in the record that suggests cross-racial identification was at issue. Since we do not know whether defense counsel would have been able to secure an expert to give meaningful testimony, we cannot say either that counsel’s performance was below the standard of care or that defendant suffered any prejudice. (People v. Carter, supra, 36 Cal.4th at p. 1189.)
There are other factors, of course, that go to the accuracy of eyewitness identification. (See CALCRIM No. 315.) Our point here is that at least one of the major considerations appears not to be present.
Second, defense counsel may have had good tactical reasons for not calling an eyewitness identification expert. Counsel certainly understood that identification was the key to the case. He argued the case that way and, unlike the first trial, the jury was properly instructed on the dangers of eyewitness testimony. However, trial counsel was faced with the following dilemma: In his client’s favor was the uncontroverted testimony that, immediately after the beating, defendant accompanied Ramirez into the store, asked for paper towels, helped clean up Ramirez’s bloodied face, and gave him money to pay for the tortillas he was intending to buy. The cashier even gave defendant the change. Defendant and members of his family were neighborhood residents, well known to the cashier. This conduct is certainly inconsistent with guilt. On the other hand, there was testimony that defendant and Riley left the scene together, walked some distance, were found near each other, and were arrested at about the same time. This suggested they were accomplices. Defendant testified he was being followed by Riley and was afraid of him, but also acknowledged he passed by stores and phone booths that he could have utilized to call for help. He also did not ask the cashier to call the police. Defense counsel may very well have thought that his best tack was to get the jury to believe his client was an honest man, that no one would participate in a serious beating and then assist the victim in tending to his wounds with the help of a store employee who could easily identify him from past contacts. Painting his client as a good Samaritan might have been more effective on the jury than using what might have been perceived as a “lawyer’s device” of getting an expert witness to talk about abstract psychological problems inherent in eyewitness testimony. As nothing illuminates the reasons defense counsel had for not calling an expert witness, and there may have been tactical reasons for the omission, defendant has failed to establish ineffective assistance of counsel. If defendant wishes to pursue the point further, he must utilize the writ of habeas corpus, the “preferred review procedure” (In re Arturo A., supra, 8 Cal.App.4th at p. 243).
The jury was instructed with CALJIC No. 2.92, the predecessor to present CALCRIM No. 315. In the first trial, in which defendant was represented by a different lawyer, no eyewitness instruction was given.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BOLAND, J., FLIER, J.