Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS071316
RUSHING, P.J.
I. Statement of the Case
Defendant Alexis Aguilar was charged by information with murder (count one), possession of a loaded gun on school grounds (count two), and two counts of street terrorism (counts three and four), and it was further alleged that he committed counts one and two for the benefit of a criminal street gang and that he personally used a firearm in committing counts one, three, and four.
After a trial, the jury found defendant guilty of count three (street terrorism) but was unable to reach a verdict on the personal-use enhancement or the other counts. Before retrial, counts two (possession of a gun) and four (street terrorism) were dismissed. Thereafter, the jury convicted defendant of first degree murder and found that he personally used a gun to commit the crime. Defendant waived a jury concerning the personal-use enhancement to count three, and the court found that allegation to be true. The court sentenced defendant to an aggregate term of 56 years to life.
On appeal from the judgment, defendant claims the court erred in excluding the testimony of an expert on eyewitness identification. He also claims the prosecutor was guilty of misconduct during rebuttal, and defense counsel rendered ineffective assistance in failing to object to the alleged misconduct.
In addition to this appeal, defendant filed a petition for a writ of habeas corpus (H033066, In re Aguilar), in which he reiterates his claim of ineffective assistance of counsel.
II. Facts
Jose Mexicano (Mexicano), a Sureño gang member, was released from prison and temporarily stayed with his parents in Salinas. They lived in an apartment on Acosta Plaza, a street that a local Norteño gang, Salinas Acosta Plaza (SAP), claimed as its turf.
On the evening of March 4, 2007, Mexicano’s 10-year-old son, Andy, was playing soccer with friends in a field near Acosta Plaza. Around 8:00 p.m., Mexicano and his father, Jose M., came home, discovered that Andy was gone, and went looking for him.
Anna R., a private security guard patrolling the area, heard Mexicano yelling for Andy and then saw some boys playing. She mentioned that someone was looking for Andy. Andy heard his father whistle and ran to him. They hugged and headed back to the apartment.
On their way, Andy saw a man in a grey sweater with the hood pulled over his head. He was holding his sweater up under his nose. The man crossed to the other side of the street, returned and walked behind them, and then said “Aey.” Andy and his father turned around. The man told Mexicano to take off his blue Yankees hat and said Andy should leave. Andy and Mexicano ran. The man then fired five shots and fled. Andy ran back to the apartment and told Jose what had happened. Jose and his wife went to the scene and found Mexicano on the ground. Police arrived and took him to the hospital, where he was declared dead. A bullet recovered from Mexicano’s chest was from a.38- or.357-caliber revolver.
Andy testified that he had identified defendant from a photographic lineup that police showed him a few weeks after the incident. He said he recognized the shooter’s eyes, nose, and little birthmark. Andy reconfirmed that the person he had identified was the shooter. During his direct examination, Andy was asked to look around the courtroom to see if he could see the shooter. He said he could not. Later, however, during cross- and redirect examination, Andy identified defendant as the shooter. He said he recognized defendant’s eyes and birthmark. When asked to explain why he had had not identified defendant in court the first time he was asked, Andy said he thought the prosecutor had told him to look in a particular part of the courtroom. Andy further testified that during a break in his testimony, he spoke to his grandmother, but she did not remind him of anything he had previously said or tell him what to say.
Police first interviewed Andy the night of the shooting. At that time, Andy did not mention any marks or pimples on the shooter’s face.
Andy’s testimony from the first trial was read at the retrial because he was unavailable at that time.
John Coletti, an investigator for the district attorney, was present during the first trial and testified at the retrial. He explained that when the prosecutor first asked Andy if he saw the shooter, the prosecutor waived his arm toward the jury box and the back of the courtroom. At that time, Coletti noticed that Andy focused on those places before saying he did not see the shooter. Colletti further testified that Andy did not mention the shooter’s birthmark until the second interview, when he was shown the lineup.
Daniel S. testified that he lived on Acosta Place and associated with Sureños. He knew the area was claimed by Norteños. About a half hour before the shooting, he and his friend Bryant were walking to a nearby gas station to get cigarettes and passed defendant, whom Daniel knew was a Norteño. Defendant asked Daniel if he “bang[ed]”-i.e., was in a gang. Daniel and Bryant did not stop. They bought cigarettes, and while walking back, they passed Andy, Mexicano, and defendant, who commented that smoking was bad. They continued on and then saw defendant walk between two apartment buildings. They encountered Anna, the security guard, and a few minutes later heard shots. They walked up the street and saw Mexicano on the ground. Anna called her supervisor and waited for the police.
Rey L. testified that he had associated with SAP for several years. Around 8:30 p.m. the night of the shooting, Juan L., a senior member of SAP, phoned him and said to call defendant. Rey called defendant, whose SAP moniker was Sneak. Defendant told Rey that he needed to get some “heat off... his back, ” which Rey understood to mean he needed to get rid of a gun. Rey was supposed to drive his girlfriend, Jessica C., to the hospital, but instead they drove to defendant’s house. Defendant seemed nervous. He retrieved something wrapped in a towel and put it in Rey’s back seat. Rey then drove home, dropped off the item, and then took Jessica C. to the hospital. There, he saw the Mexicano family and got negative feelings. According to Rey, everyone knew that Mexicano was a Sureño.
Back home, Rey opened the towel and found a.38-caliber revolver. The next day, he saw defendant, who asked if Rey still had the gun. Defendant said that he had let someone “have it, ” which Rey understood to mean that defendant had shot someone. A few days later, Rey gave the gun to a man at a gas station. Several months later, he and defendant were in jail together, and defendant said that he would “walk” if Rey did not testify against him.
Rey admitted that on March 10, 2007, he was arrested for possessing a gun that had been used in an unrelated gang shooting on Cross Street. He agreed to help the police because he had heard that gang members were after him, and he was worried about his safety in jail. Rey falsely accused defendant of the Cross Street shooting. However, he truthfully told police that defendant was responsible for shooting Mexicano. Rey later told police that defendant had not been involved in the Cross street shooting. Thereafter, Rey’s bail was reduced, and he posted it and was released.
After his release, Rey declined to help the police because he knew that gangs target those who testify. Later, police searched Rey’s house, found marijuana, and arrested him. This time his bail was not reduced. Rey remained uncooperative because he feared that his name would be circulated. While in jail, he was caught with more marijuana. In June 2008, he finally agreed to testify against defendant in exchange for a recommendation of lenient treatment on the marijuana charge. Rey explained that he must now remain vigilant because he cooperated with authorities. During the first trial, he and his family had been relocated for security purposes. However, because he was short of money, he returned to Salinas and was arrested for domestic violence. He later pleaded no contest to that charge.
Israel R. testified that he was a SAP member. Around the day of the shooting, someone painted a Sureño grafitti on his garage door. He called defendant, who told him to “chill.” Early that evening, defendant came by. Israel was still repainting the garage door, and defendant told him to call when he was finished. When Israel called, defendant sounded out of breath as if he had been running. Israel asked why, and defendant said that someone “just got smoked in the hood.” Defendant first denied being involved but later admitted being the shooter. He said he had been walking around the neighborhood “packing” a gun and encountered someone and asked his gang affiliation. When the person ran, defendant chased and shot him. A few days later, defendant told Israel that the victim had been with his young son, but he was not sure the boy had recognized him.
Israel admitted that he was arrested on August 17, 2007, and charged with attempted murder. Israel faced a possible life sentence and turned down a plea offer for 29 years, hoping for something better. In July 2008, he agreed to testify and plead to one count of assault with a gun for the benefit of his gang in exchange for a recommended sentence of 10 years 8 months. While in custody, Israel’s family was relocated. At trial, he said he regretted his decision to testify. He said that his life was now in danger.
The parties stipulated to the following facts. In July 2006, Israel attempted to rob a teenager after asking his gang affiliation. In July 2007, Israel approached a man in a gas station, asked his gang affiliation, and threatened him with a gun. Later, Israel was arrested for attempted murder involving the same man.
An investigation of cell phone records revealed that Israel called defendant twice at 5:17 and 5:21 p.m. Defendant called him back at 5:54. Defendant then called Juan at 6:17, 7:33, and 8:10. Defendant received calls from a blocked number at 8:19 and 8:20. Israel called defendant at 8:37. Defendant called Juan at 8:41 and 8:50. Rey called defendant at 9:15 and 9:19. Juan’s phone records, which showed only outgoing calls, revealed calls to defendant at 8:55, 9:12, 9:14, and 9:20; and a call to Rey at 9:12.
Police searched defendant’s house and seized, among other things, a photograph of someone wearing a memorial jacket on the back of which was stitched, “In Love And Memory Of Jose Mexicano Dec. 31, 1981-Mar. 4, 2007.” Officer Bryan McKinley of the Salinas Police Department testified as a gang expert. He explained that gang members keep memorial-type memorabilia of enemies who have been killed. Officer McKinley opined that defendant’s photograph constituted a “trophy” of Mexicano’s killing.
There was a considerable amount of additional testimony about gangs in general, SAP, and defendant’s connection to gangs and gang activity, all related primarily to the gang-enhancement allegations. We need not summarize this evidence because no issues are raised concerning the gang-enhancement findings.
The Defense
Defendant’s brother, Felipe, who was 13 at the time of the incident, testified that on that day, he was with defendant except for when he went to school. That evening, they were home together for the whole time. Sometime between 6:00 and 7:00 p.m., they went to Panda Express to get take-out dinner. They got back home at 8:30 p.m. At that time, defendant went to his room. Felipe said he heard defendant on the keyboard of his computer. Later, their mother called and told them about the shooting. She arrived a short time later.
Defendant’s mother testified that on the night of the incident, she was in her car coming home from Watsonville. She passed Acosta Plaza and learned about the shooting. She immediately called home, and Felipe told her that he and defendant were there. She thought she got home between 8:00 and 9:00 p.m. After that, she and defendant took some soup to her daughter, Jessica G., who lived nearby.
Jessica G. recalled telling an investigator that her mother and defendant had come by around 9:00 p.m. However, at trial, she was not sure of the time.
Rebuttal
Detective Gerry Davis of the Salinas Police Department testified that the computer seized from defendant’s room had been used around 4:00 p.m. and not again until after 10:54 p.m.
Investigator Coletti testified that cell phone records from defendant’s mother’s phone revealed that she called her home at 9:35 p.m.
III. Exclusion of Expert Testimony
Defendant contends the court erred in excluding the proposed testimony of a defense expert on eyewitness identification.
Background
Prior to trial, defense counsel revealed his intent to call Doctor Richard Shomer as an expert witness concerning the psychological factors that can affect the accuracy and reliability of eyewitness identifications. The prosecutor sought to exclude his testimony, and the court deferred ruling on motion.
At the close of the prosecution’s case in chief, the court revisited the issue. At that time, the court noted that there was sufficient corroboration of Andy’s identification of defendant to render the proposed expert testimony unnecessary. The court further opined that the various factors that might implicate the reliability of Andy’s identification involved circumstances that were within the jury’s common experience and were explored on cross-examination and could be argued by the defense. Finally, the court expressed concern about the possibility that presenting the expert testimony would result in a time consuming mini-trial and a battle of experts.
Discussion
In People v. McDonald (1984) 37 Cal.3d 351 (McDonald) (overruled on another point in People v. Mendoza (2000) 23 Cal.4th 896, 914), the Supreme Court addressed the admissibility of expert testimony concerning the psychological factors that can affect eyewitness identification. In that case, there was equivocal testimony identifying the defendant by six eyewitnesses. A seventh witness unequivocally said that defendant was not the perpetrator. The defendant presented six alibi witnesses, who said that the defendant was not even in the state when the crime occurred. (McDonald, supra, 37 Cal.3d at pp. 355-360.) The defendant also sought to introduce the testimony of an expert on eyewitness identification. However, the trial court found the proposed testimony inadmissible and excluded it. (Id. at pp. 361-363.)
The Supreme Court concluded that it was error to exclude the testimony. The court explained that certain factors affecting the accuracy of an eyewitness may be beyond the common experience of jurors, and, therefore, expert testimony could be of assistance in “appropriate cases.” (McDonald, supra, 37 Cal.3d at p. 369.) Although generally trial courts have broad discretion in admitting expert testimony, the Supreme Court concluded that here the court abused its discretion. The court noted that the prosecution hinged on the accuracy and reliability of the eyewitnesses’ testimony, that testimony was equivocal, the proposed expert testimony could have assisted the jury in resolving the crucial issue, and its exclusion undercut the evidentiary basis of the main line of defense. (McDonald, supra, 37 Cal.3d at pp. 373-376.) The court further concluded that the error was prejudicial. The court observed that the evidence of guilt was close, there was no other direct or circumstantial evidence linking the defendant to the crime, there were potential weaknesses in the eyewitnesses testimony that the expert would have exposed, and there was a substantial eyewitness and alibi defense. (Id. at p. 376.)
In closing, however, the court emphasized that the decision to admit or exclude expert testimony “remains primarily a matter within the trial court’s discretion[.]” (McDonald, supra, 37 Cal.3d at p. 377.) “ ‘[W]e do not intend to “open the gates” to a flood of expert evidence on the subject.’ ” (Ibid.) Indeed, the court opined that “such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court’s discretion in this matter.” (Ibid., fn. omitted; accord, People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995 [“Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary.”].) Nevertheless, the court advised that “[w]hen an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.” (McDonald, supra, 37 Cal.3d at p. 377, italics added.)
In a footnote, the court further advised, “Even when the trial court correctly excludes such testimony, the defendant may be entitled to a special instruction specifically directing the jury’s attention to other evidence in the record-e.g., facts developed on cross-examination of the eyewitnesses-that supports his defense of mistaken identification and could give rise to a reasonable doubt of his guilt. [Citations.]” (McDonald, supra, 37 Cal.3d at p. 377, fn. 24.)
In this case, the trial court gave CALCRIM No. 315, which advises jurors concerning numerous factors they should consider in determining the accuracy and reliability of eyewitness identification. As given, the instruction provided as follows: “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; [¶] 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 the defendant in a photographic or physical lineup; [¶] 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.”
In People v. Sanders (1995) 11 Cal.4th 475, 509 (Sanders), the court reaffirmed McDonald but concluded that the expert testimony had properly been excluded. Although the prosecution hinged on the eyewitness identification, there was incriminating circumstantial evidence that corroborated that identification and thereby gave it independent reliability. Moreover, the eyewitness testimony, unlike that in McDonald, was not the only evidence linking Sanders to the crime. (Id. at pp. 509-510.) The court further opined that even if it were error to exclude the expert testimony, the error was harmless because (1) the eyewitnesses had been cross-examined concerning the accuracy and reliability of their identifications; (2) defense counsel during closing argument emphasized the various factors that tended to undermine the accuracy and reliability of the identifications; (3) the identifications were corroborated; and (4) the defendant offered no alibi. (Id. at p. 510.)
In People v. Jones (2003) 30 Cal.4th 1084 (Jones), the court similarly upheld the exclusion of expert testimony because there was other evidence that substantially corroborated the eyewitness identification. (Id. at p. 1112.) In particular, five witnesses corroborated the eyewitness identification. The court acknowledged that all five were impeachable due to bias and their prior inconsistent statements; and it noted that three were also accomplices to the crime, whose testimony itself needed to be corroborated. (Ibid.) However, those weaknesses did not prevent the evidence from providing sufficient corroboration of the eyewitness identification to render expert testimony unnecessary.
In this case, Andy identified defendant from photographs a few weeks after the incident, and he reiterated his identification in court. Although his identification was based on a limited view of defendant’s face, there was, as in Sanders and Jones, substantial evidence that both corroborated Andy’s identification and independently linked defendant to the shooting. Daniel saw defendant in the area of the shooting just before it happened. Rey and Israel essentially said that defendant admitted shooting Mexicano. Defendant also told Rey that he needed to get rid of a gun and gave it to Rey, who gave it away. The gun was a.38- or.357 caliber revolver. The bullet taken from Mexicano was.38- or.357 caliber. Israel said that defendant was out of breath when they spoke. Defendant later said that the victim had been with a boy. Cell phone records established that defendant, Rey, and Juan made calls to each other before and after the shooting. Defendant, a Norteño, had a trophy photograph of someone wearing a memorial jacket to Mexicano, a Sureño. And defendant implicitly asked Rey not to testify.
Given this substantial amount of additional evidence incriminating defendant and corroborating Andy’s identification, we do not find that the trial court abused its discretion in excluding expert testimony. This is especially so because the court intended to give, and, as noted, gave, a comprehensive instruction directing jurors to consider many of the factors affecting Andy’s identification that defendant’s proposed expert would have explained, such as the lighting at the time of the incident, how much attention Andy paid to the perpetrator, Andy’s limited view of the perpetrator, Andy’s stressful state of mind during the incident, the passage of time between the incident and Andy’s identification, and Andy’s initial inability to identify defendant in court.
Defendant claims that Rey’s and Israel’s testimony lacked credibility because they were ex-gang members who implicated defendant in return for lenient treatment in their own criminal cases. Thus, defendant suggests that their testimony was too inherently unreliable to corroborate Andy’s identification. We disagree.
In Jones, supra, 30 Cal.4th 1084, the court explained that “[i]t does not matter, for this purpose, that [the corroborating witnesses] may have been accomplices whose testimony would require corroboration to support a conviction. [Citation.] Neither does it matter that all five witnesses could be impeached by proof of bias or prior inconsistent statements. The cumulative corroborative effect of the testimony of defendant’s admissions is sufficient to give independent reliability to the eyewitness identifications.” (Id. at p. 1112; see also People v. Placensia (1985) 168 Cal.App.3d 546, 555 [eyewitness testimony corroborated by two of the defendant’s fellow gang members].) Here, the fact that Rey’s and Israel’s credibility was subject to impeachment does not render their testimony insufficient to corroborate Andy’s identification. Moreover, their testimony was not the only incriminating circumstantial evidence linking defendant to the shooting and thereby corroborating Andy’s identification.
Finally, even if it were error to exclude the expert testimony, we would find the error to be harmless. Given Andy’s identification; the extensive argument by both parties concerning the factors affecting its accuracy and reliability; the substantial amount of evidence corroborating Andy’s identification and independently linking defendant to the shooting; defense counsel’s cross-examination of Rey, Israel, and Daniel; the weakness of defendant’s alibi; and the court’s instruction, we do not find it reasonably probable defendant would have obtained a more favorable result had the expert testified. (People v. Watson (1956) 46 Cal.2d 818, 836.)
We reject defendant’s claim that the exclusion of expert testimony in this case, even if it were erroneous, constituted federal constitutional error. The Sixth and Fourteenth Amendments guarantee a state criminal defendant a meaningful opportunity to present a complete defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690-691.) Here, the exclusion of expert testimony did not prevent defendant from attacking Andy’s identification on the same bases that the proposed expert testimony would have supported; and, more importantly, the exclusion did not prevent defendant from asserting an alibi defense. Thus, the exclusion of evidence did not implicate defendant’s due process rights. (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
IV. Prosecutorial Misconduct
Defendant contends that the prosecutor was guilty of misconduct during rebuttal, in that his PowerPoint presentation quantified and trivialized the reasonable doubt standard of proof.
A defendant may not complain on appeal of prosecutorial misconduct unless he or she raised a timely objection and requested that the jury be admonished. (People v. Letner (2010) 50 Cal.4th 99, 170, 179; People v. Brown (2003) 31 Cal.4th 518, 553.) Here, defense counsel did not object to the prosecutor’s rebuttal presentation. Moreover, the record does not suggest that an objection would have been futile or a judicial admonition ineffective. Accordingly, defendant forfeited his claim of prosecutorial misconduct.
V. Ineffective Assistance of Counsel
Defendant contends that defense counsel rendered ineffective assistance in failing to object to the alleged prosecutorial misconduct.
To obtain reversal due to ineffective assistance, a defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney[.]” (People v. Cunningham, supra, 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Moreover, where the record on direct appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) Under such circumstances, claims of ineffective assistance are generally rejected on direct appeal and more properly raised in a petition for habeas corpus, which can include declarations and other information outside the appellate record that reveal the reasons for the challenged conduct. (People v. Mayfield (1993) 5 Cal.4th 142, 188 [“tactical choices presented... on a silent record” are “better evaluated by way of a petition for writ of habeas corpus” and will be rejected on direct appeal].)
Here, the record does not reveal counsel’s reasons for not objecting to the rebuttal presentation. Moreover, trial decisions concerning whether to object to alleged prosecutorial misconduct are inherently tactical. Thus, failure to object rarely establishes counsel’s incompetence. (People v. Maury (2003) 30 Cal.4th 342, 415-416, 419.)
Under the circumstances, the record on appeal does not establish as a matter of law either that counsel was incompetent or that the failure to object was prejudicial. As noted, however, defendant also filed a petition for a writ of habeas corpus in which he raises this claim of ineffective assistance. Accordingly, we reject his claim on appeal and shall address it in ruling on the petition.
VI. Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J.ELIA, J.
We ordered the petition to be considered with the appeal and dispose of the petition by separate order.