Opinion
B298159
06-10-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIE BUTTS, Defendant and Appellant.
Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Noah P. Hill and Stephanie C. Santoro, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA460950) APPEAL from an order of the Superior Court of Los Angeles County. Mark S. Arnold, Judge. Affirmed as modified. Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Noah P. Hill and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Willie Butts (defendant) appeals from his felony convictions on the grounds that the trial court erroneously instructed the jury regarding eye witness identification, and that defense counsel rendered ineffective assistance by failing to call an eyewitness identification expert. Defendant also requests remand for resentencing on count 7. We agree that the count 7 sentence must be modified, but we do so without remand. Finding no merit to defendant's remaining contentions, we otherwise affirm the judgment.
BACKGROUND
In a seven-count information, defendant was charged with the following felonies: second degree robbery in violation of Penal Code section 211 (count 1); assault with a firearm, in violation of section 245, subdivision (a)(2) (counts 2, 3, 4 & 5); possession of a firearm by a felon, in violation of section 29800, subdivision (a)(1) (count 6); and unlawful possession of ammunition in violation of section 30305, subdivision (a)(1) (count 7). The information further alleged that defendant personally used and personally discharged a firearm, causing great bodily injury within the meaning of section 12022.53, subdivisions (b), (c), and (d) in count 1. As to counts 2, 3, 4, and 5, it was alleged that defendant personally used a firearm within the meaning of section 12022.5.
All further statutory references are to the Penal Code, unless otherwise indicated.
A jury found defendant guilty as charged and that all special allegations were true. On April 3, 2019, the trial court sentenced defendant to a consecutive prison term of 31 years to life, plus concurrent terms, comprised of the following: count 1, a term of three years plus 25 years to life due to the firearm enhancement of section 12022.53, subdivision (d); count 2, a consecutive term of one year plus one year four months for the firearm enhancement of section 12022.5; counts 3, 4, and 5, concurrent terms of one year plus one year four months for the firearm enhancement of section 12022.5; count 6, a consecutive term of eight months; and count 7, a concurrent term of two years. The court imposed a $300 victim restitution fine, a $210 criminal conviction assessment, a $300 parole revocation restitution fine (stayed), and a court operations assessment of $280. Defendant's combined presentence custody credit was calculated as 656 days.
Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence
The shooting
Friends, Rene Felix, Derek Ortega, Reynaldo Vasquez, and Luis Diaz, were all about 18 years old on September 8, 2017. At approximately 11:00 p.m., the group went to a movie theater intending to see a midnight show, but found that there were no more show times, so instead they decided to go swimming at the community pool in South Park. When they arrived at approximately midnight, they found the pool closed and inaccessible, so they decided to stay at the park. They went to the children's playground, where they sat on a tilting platform apparatus.
Soon thereafter a man approached them riding a motorized beach cruiser bicycle with a basket. The man looked at the group for several minutes, and then rode out of sight. He returned a few minutes later, approached the group within about six or seven feet, and accused them of having beaten him up the previous night. The friends told the man that he was mistaken, but the man, who seemed more agitated, insisted that they were the ones who had assaulted him. The man then aggressively demanded that the friends take off their clothes, and moved to within about three or four feet of Felix, who was standing in front of Ortega, and took out a gun. Vasquez took off his shirt and the other friends started taking off their shirts, but Felix refused. The man fired a shot, hitting Felix in his right leg, striking his tibia. The bullet also grazed Ortega's ankle. Felix tried to walk away, but the man got on the playground equipment, grabbed him and pulled him back closer to the group.
Felix's leg was placed in a hard cast for two months and he was unable to walk. He then wore a removable boot cast and used crutches. He underwent physical therapy because his leg did not function from the knee down. At the time of trial, Felix was still unable to do many of the things he did before the shooting and he still had residual numbness and pain.
Vasquez saw the wound and asked to help his friend, but the man said, "Take off his pants. Hurry up." Vasquez and Diaz helped Felix take off his pants, and then Vasquez used his shirt and belt to stop the bleeding from the leg wound. The man threatened to kill them if they did anything as he rode away on his bicycle with Felix's pants. In the pants were Felix's cell phone, keys, wallet, debit card, driver's license, social security card, some discount cards, a Disneyland annual pass, and $10 in cash.
The prearrest identifications
Felix testified that the lighting in the park that night was minimal, but there was enough to make out his friends faces when they were on the platform together. There was also enough light for Felix to see that the shooter was a tall, slender African-American man who wore a black jacket and had a patchy beard.
Vasquez testified that near the place where the friends had congregated, there was a row of LED lights on a tall pole that provided enough light for him to see faces from a distance. There were other tall pole lights throughout the park. Though the park was dark, the man came within two feet of him and there was enough light for him to see that their assailant was a slender African-American man, taller than Vasquez, with a short "block" beard, wearing a black trench coat. As soon as the man rode away Vasquez called 911. He told the 911 operator that the shooter had left on a motorized bicycle, and described him as African-American, wearing a black coat, and black helmet.
Diaz testified that there was enough light around the playground to illuminate the area where he and his friends stood. There was adequate light to see someone approaching from 40 feet away, and to see whether the person was walking or riding a bicycle. There were lights around the swing set, near the soccer field, and on the outside of the basketball gym, all of which illuminated the playground area. Diaz was able to see that the shooter was a tall, thin, Black man in his 50's with a beard, wearing a black sweater and helmet.
Martinez testified that it was a pitch-black night, with few lights in the park, but enough light for him to see his friends and anyone else within a few feet of him. When the shooter got within a few feet of him, Martinez could see enough to describe the shooter as an African-American man, about 50 years old, pretty tall, thin, with a little facial hair with a bit of white in it, and wearing a black leather jacket, black jeans, and a black helmet over a white bandanna.
The friends differed in their estimates of the man's height and weight: Felix said about 5'10" and 160 to 170 pounds; Vasquez about 5'7" or 5'8" and more than his own 112 pounds; and Diaz thought about six feet and 150 to 160 pounds. Ortgea was not asked to make an estimate.
Ortega testified that though it was dark and difficult to see, there were some lights on in the park and he could make out some details of defendant's appearance when they were within five feet of each other. When he spoke to the police after the shooting, Ortega told them that the shooter was African-American, approximately 55 years old, and wore a black jacket.
Los Angeles Police Detective Steven Garcia was assigned to investigate the shooting. He reviewed the video taken by one of the friends of the man riding toward the auditorium/gymnasium and away from the park. He could tell that the bike rider was not pedaling, so it appeared that the motor was engaged, which was consistent with the friends' report that the shooter was riding a motorized bicycle. Detective Garcia obtained surveillance video from a nearby 7-Eleven store, where Felix's debit card was used several hours after the shooting. Detective Garcia suspected that the person using the card on the video was defendant. Though the surveillance video was blurry at eye level, he recognized defendant's body type and could barely make out his goatee. Detective Garcia had seen defendant many times around the neighborhood since 2001.
The video was admitted into evidence as People's exhibit No. 4. The jury was shown about 30 seconds of the 10-minute video showing a person who appears to be riding a bicycle. Other than the transcript of the 911 call, the exhibits were not transmitted to this court and they are thus not part of the record on appeal. We assume the exhibits depict that which the witnesses describe in their testimony, and defendant has not claimed otherwise.
Detective Garcia had been assigned to the neighborhood surrounding South Park since about 2001, except for a three-year period when he was assigned elsewhere.
Detective Garcia had last seen defendant on August 31, 2017, 10 days before the shooting. Defendant, as usual, had his bicycle with him. It was a dark-colored beach cruiser, with a whitewall front tire, a black basket, and a motor. Defendant told Detective Garcia that the bicycle was his and that he was the only person who ever rode it. That was the first time he had actually spoken to defendant in all the times he had seen him around the neighborhood. Detective Garcia identified a photograph of defendant's bicycle.
When Detective Garcia first reviewed the crime report containing the witnesses' descriptions of the shooter and his bicycle, he thought of defendant and considered defendant a person of interest. Detective Garcia then put together a "six-pack" photographic lineup to show the victims, consisting of six photographs on a page, three on top, three on the bottom, numbered one through six. Detective Garcia prepared the lineup by inputting defendant's photograph into a computer program which searches for photographs of persons with similar facial features. He obtained five photographs of African-American men with features similar to defendant's, then placed defendant in position No. 1, and the other photographs next to and under defendant's. He showed the photographic lineup to each of the friends separately, except Ortega, whom he was unable to contact.
Felix was not quite sure. He believed it was No. 1, but could not be sure, so he did not circle a photograph. Martinez said he recognized someone and circled photograph No. 1. Vasquez and Diaz both said they believed it was No. 1, but both were uncertain as well, so they did not circle a photograph.
The postarrest identifications
Officer Samuel Gil and his partner Officer Fernandez, saw defendant riding a black motorized beach cruiser bicycle near South Park on September 11, 2017, and detained him. Officer Gil had previously seen defendant in the area about five to eight times, sometimes on his bicycle. He remembered defendant's bicycle because of its unusual feature of having the motor mounted on the center frame above the pedals. Still photographs from Officer Gil's body camera video were shown to the jury. One photograph depicted the basket on the bicycle as it looked when Officer Gil detained defendant. The basket contained a stereo, a black helmet, and a black plastic bag with items inside. An orange container hanging from the side of the basket obstructed the view of the other items from the body camera.
Officer Chessum, who arrived to assist, opened the bag, went through the contents, and Officer Gil prepared an inventory. Several cards were found inside the bag, including Felix's driver's license, his high school identification, his social security card, his Disneyland pass, a Yamaha Financial Services card, his motorcyclist course completion card, and his American Red Cross card. The officers found no weapon on defendant or on his bike.
At trial, Felix identified defendant in court as the man who shot him. Felix explained that he had been uncertain about defendant's photograph because all the men depicted in the photographic lineup seemed similar, and he did not want to put the wrong person in jail. But when he saw defendant in person at the preliminary hearing and at trial, he was certain that defendant was the man who shot him. When defense counsel asked Felix whether he knew from speaking with officers before the preliminary hearing that he would see his shooter in court, Felix replied, "Yeah." Defense counsel followed up with, "So when you were there testifying, . . . when you were asked is he in court now, of course that's him; right?" Felix replied, "Yeah." Felix clarified on redirect that he did not identify defendant in court at the preliminary hearing only because he was the only African-American man sitting at a table in a courtroom. He added that he would not have identified him at the preliminary hearing or at trial if he had not recognized him.
Vasquez also identified defendant in court, and explained he was certain because of defendant's distinctive cheekbones and the way his face looked. Vasquez explained that he could not identify the photograph probably because he tried not to make eye contact with the shooter, not wanting to provoke him. In court, however, he was able to identify defendant's photograph as No. 1 in the photo array.
Diaz identified defendant in court as the shooter, both at the preliminary hearing and at trial. When the police showed Diaz photographs, he circled the one that most resembled the man he remembered -- the thinnest man with facial hair, but he was not certain. When Diaz saw defendant in person, he recognized defendant's face and his body structure. When shown the photo array in court, he also testified that could see that photograph No. 1 depicted defendant.
Martinez, who had selected defendant's photograph with certainty prior to seeing him in court, testified that the photograph in the photo array looked exactly like defendant. He was positive that defendant was the man who shot Felix. When defense counsel asked Martinez whether when he saw defendant at the preliminary hearing, wearing a blue jail outfit, "you figured it had to be the person; correct?" Martinez replied, "Yes, it had to be him." On redirect, Martinez clarified that he did not identify defendant only because he was the only person sitting in the courtroom in a jumpsuit. He recognized him as the man who shot Felix.
Ortega did not see the photographic lineup. The first time he saw defendant after the shooting was at the preliminary hearing. Ortega testified that defendant did not look significantly different at the preliminary hearing or at trial, except that at trial, defendant was dressed more formally.
Defense evidence
Defendant testified that he had been homeless for over two years and lived in South Park since about May 2017, as did about a dozen other homeless people. He had a tent on the back fence of the park by the swimming pool, and got around on a bicycle or he walked if he did not have gasoline. Defendant explained that he used a motorized bicycle because he had a disability that made it difficult to pedal. He had the bicycle for about a year, maybe more.
When not riding the bicycle defendant kept it behind his tent. He did not lock it because people in the area knew that it was his bicycle. Defendant denied having told Detective Garcia that only he ever rode his bicycle. He claimed that other people have ridden it, though not many and not very often, maybe 10 times since he got it over a year ago.
On September 8, 2017, defendant had walked to his grandmother's house to eat and shower and had left his bicycle behind his tent because his friend James Dunn, who had ridden it before, had asked to use the bike. Dunn was also African-American, probably a little taller and thinner than defendant, with about the same complexion. He died about four months before trial. Defendant testified that he did not know where his bicycle was from the time defendant left it behind his tent on September 8 until he picked it up on September 11. He assumed that Dunn still had it. Defendant picked up the bicycle at Dunn's house, which was a couple of houses down from his grandmother's. The gas container hung on the basket, and inside the basket there was a radio, a DVD player, and a camcorder. Defendant also kept a wooden cane between the basket and the handlebars. Defendant testified that he saw all those items when he retrieved his bicycle from Dunn's yard, but denied seeing a black plastic bag, and he surmised that it might have been under other things. He was riding the bicycle when he was stopped by the police on September 11.
Defendant testified that he was in the park early in the day on September 8, but denied being there around midnight or in the early morning hours of September 9. He denied having pointed a gun at the young men, denied having robbed any of them or having shot one of them. Rather, he spent the night at his grandmother's house and went to sleep around 10:00 p.m. The next morning, he took a bus to his fiancée's house, and never made it back to the tent because he was arrested two days later.
Defendant explained that he did not live with his grandparents because he was a cocaine addict, his grandmother had dementia with nurses caring for her, and he did not want to disrespect his grandparents or their house. Later in his testimony, defendant explained that his grandfather was not there and did not live there at the time. Defendant's uncle took care of his grandmother and was there at the time of defendant's visit.
Defendant denied daily use of drugs, but admitted that he would get high as often as he could. He would buy rock cocaine at the park three or four days a week, paying for it with money he earned by recycling and his monthly $221 general relief. Defendant also received $194 in food stamps. His usual cocaine purchase was $40 worth, if he had the money. Defendant also explained that he did not get high when visiting his girlfriend as she did not allow it. Since he was with her on September 9, he did not get high then.
Though defendant agreed it was dangerous living in the park, he denied having a knife or gun to protect himself. He admitted that he previously owned a gun and was convicted in 1996, 2003, and again in 2005 for possession of a firearm by a felon. Defendant also admitted that he had previously been convicted of theft-related crimes.
In 1992, defendant was convicted of felony receiving stolen property and taking a vehicle without the owner's consent, also a felony. Defendant denied having been convicted of any crime involving violent behavior. He admitted having been convicted of jail escape, but denied it was done by force or violence, but was a walk-away. Defendant also admitted convictions in 1996 and 1999 for felony evasion of police, and in 1999 for selling narcotics. He denied that he was convicted of obstructing or resisting the police, and did not recall serving two years in custody for that.
Defendant, age 52 at the time of trial, explained that he did a lot of crazy things when he was younger. He acknowledged that he was in his late 20's and early 30's when he committed some of his crimes. He denied engaging in criminal activities anymore; he was simply an addict.
DISCUSSION
I. CALCRIM No. 315 the certainty factor
A. Forfeiture and binding precedent
Defendant contends that the court erred by instructing the jurors with that portion of CALCRIM No. 315 which urges consideration of how certain the witness was when he or she made an identification. He points out that his only defense was that he was not the person who committed the crimes. Defendant also argues that the instruction was prejudicial because at least three of the five victim-witnesses failed to identify defendant's photograph from the six-pack photographic lineup shortly after the incident, and because they acknowledged that when they identified defendant at the preliminary hearing he was the only African-American man dressed in blue jail-issue clothing seated at the defense table.
CALCRIM No. 315 enumerates more than a dozen factors the jury should consider when evaluating eyewitness testimony. In full, the trial court read the instruction to the jury as follows: "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, duration of observation, and mental state? 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 the identification? Are the witness and the defendant of different races? 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 it was the defendant who committed the crimes. If the People have not met this burden, you must find the defendant not guilty."
We agree with respondent that defendant has forfeited this issue by failing to object to the jury instruction or to request a modification of the instruction in the trial court. (See People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez); People v. Sullivan (2007) 151 Cal.App.4th 524, 561.)
Defendant forfeited the issue by failing to object, as we are bound by California Supreme Court authority on the merits of the issue. For three decades, the court has upheld the propriety of including a certainty factor in CALJIC No. 2.92, the predecessor equivalent of CALCRIM No. 315. (Sánchez, supra, 63 Cal.4th at pp. 461-462, citing People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright), and People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232.) Thus, even if defendant had not forfeited the issue, our Supreme Court precedents upholding the certainty factor foreclose his challenge. We are bound by those decisions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant suggests that we are not bound by cases such as Sánchez which involved CALJIC No. 2.92, because that instruction is distinguishable from CALCRIM No. 315, in that CALJIC No. 2.92 tells the jury that it "should consider" the enumerated factors, whereas CALCRIM No. 315 tells the jury simply, "consider" the factors. (See Sánchez, supra, 63 Cal.4th at p. 461.) Defendant also argues that Sánchez is distinguishable because the certainty factor in CALJIC No. 2.92 is worded, "the extent to which the witness is either certain or uncertain of the identification," whereas CALCRIM No. 315 tells the jury simply to consider how certain the witness was, without the addition of an "uncertainty" factor. We discern no significant distinction, and the Sánchez court referred to the certainty factor of both CALJIC No. 2.92 and CALCRIM No. 315. (Sánchez, supra, at p. 461.) We remain bound by Sánchez. (See People v. Rodriguez (2019) 40 Cal.App.5th 194, 199-200.)
Defendant points to Justice Liu's concurring opinion in Sánchez, supra, 63 Cal.4th at pages 494-498, and his dissent in People v. Reed (2018) 4 Cal.5th 989, 1028-1031, urging the majority to take up the issue of the certainty factor in light of scientific studies showing that witness certainty is not necessarily correlated with accuracy of eyewitness identifications, and discussing the criticism of the factor in several sister-state opinions. Our Supreme Court upheld the certainty factor despite acknowledging that (as defendant argues here) scientific studies have concluded "there is, at best, a weak correlation between witness certainty and accuracy"; and despite acknowledging (as defendant argues here) that some sister-state courts have disapproved instructing on the certainty factor in light of such studies. (Sánchez, supra, 63 Cal.4th at pp. 461-462.)
Moreover the eyewitnesses here were not consistently certain of their identifications. Felix, Vasquez and Diaz did not circle defendant's photograph in the photographic lineup, because they were unsure. Only when the three saw defendant in court were they sure. Martinez alone circled defendant's photograph and was positive of his identification in the six-pack and then later in court. As the Supreme Court stated: "[I]n a case like this involving uncertain as well as certain identifications, it is not clear that even those [sister-state] cases would prohibit telling the jury it may consider this factor"; and, "Any reexamination of our previous holdings in light of developments in other jurisdictions should await a case involving only certain identifications." (Sánchez, supra, 63 Cal.4th at p. 462.)
Defendant also cites People v. Lemcke (June 21, 2018, G054241) [nonpub. opn.], review granted Oct. 10, 2018, S250108, in which the California Supreme Court stated in granting review that it would consider whether "'instructing a jury with CALCRIM No. 315 that an eyewitness's level of certainty can be considered when evaluating the reliability of the identification violate[s] the defendant's due process rights.'" Defendant concludes that we thus "must recognize that there are substantial concerns that CALCRIM No. 315's instruction that the jurors consider the eyewitness's certainty of the identification likely misdirects the jurors' attention to a consideration that is not supported by empirical studies and has been found to be legally and factually misleading," in violation of due process. We recognize that this issue is before the Supreme Court in Lemcke, but unless and until the Supreme Court changes the law, we are bound by its holding that including the certainty factor in instructions on eyewitness identification is not error. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In sum, we disagree with defendant's suggestion that we are not bound by Sánchez or the Supreme Court's other cases approving the certainty factor. As the court noted in Sánchez, "We specifically approved CALJIC No. 2.92, including its certainty factor. (Wright, [supra, 45 Cal.3d] at pp. 1144, 1166 [appendix].) We have since reiterated the propriety of including this factor. (People v. Johnson[, supra, ] 3 Cal.4th 1183, 1231-1232.)" (Sánchez, supra, 63 Cal.4th at p. 462.)
B. No prejudice
Regardless of forfeiture, defendant has not demonstrated prejudice. Defendant argues that the certainty factor of CALCRIM No. 315 lessened the prosecutor's constitutional burden of proof beyond a reasonable doubt. Defendant thus concludes that we must apply the test for prejudice due to federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24 (the Chapman test), which requires respondent to establish beyond a reasonable doubt that the error did not affect the verdict. On the contrary, if the certainty factor in CALCRIM No. 315 had been erroneous, the Watson test for harmless error would apply. (See People v. Ward (2005) 36 Cal.4th 186, 214; Wright, supra, 45 Cal.3d at p. 1144.) Under Watson defendant would have to demonstrate a reasonable probability that the result would have been different absent the alleged error. Further, if the court had erred in including the certainty factor in CALCRIM No. 315, we would find the error harmless under the Chapman test as well.
See People v. Watson (1956) 46 Cal.2d 818, 836.
Defendant asserts that "[t]here was uncontradicted evidence that appellant was handicapped and used a cane to help him walk." He argues that because none of the witnesses testified that the shooter used a cane or appeared to have any trouble walking, this "evidentiary omission" would likely have caused concern among some of the jurors if the certainty factor had been omitted. We find nothing in the record regarding difficulty walking. Defendant testified that he used a motorized bicycle because his disability made it difficult to pedal, but he did not say what the disability was or that he could not pedal. On the pages of the reporter's transcript cited by defendant, there appears his testimony that the cane on the bicycle belonged to him, and his statement, "I walk with a cane." Nowhere do we find any explanation of why he walked with a cane, and apparently, he did not always do so. We also note that defendant claimed that he had left his bicycle behind his tent at the park and then walked a half mile to his grandmother's house. He testified that when he retrieved the bicycle from Dunn's yard, he saw all the usual belongings that he kept on the bicycle: the gas container hanging on the basket; a radio, a DVD player, and camcorder inside the basket, and his wooden cane which he kept between the basket and the handlebars.
Defendant argues that if the certainty factor had been omitted from the jury instructions, there was a reasonable chance that the jury would have believed his testimony regarding Dunn. This is doubtful. Defendant testified that Dunn died four months before the mid-December 2018 trial. Thus, Dunn died sometime in August 2018, almost a year after defendant was arrested in September 2017; yet in all that time, no evidence regarding Dunn was preserved or presented. As the prosecutor argued in summation, there was nothing in the evidence corroborating defendant's story that he lent the bicycle to Dunn that night or that he went to his grandmother's house, although defendant "has had since September of 2017 to think about this case and to think about a story that he could tell that would exonerate him of these crimes."
The jury had ample reason to doubt defendant's testimony apart from the certainty factor. In addition to his lengthy history of felony convictions, defendant was a cocaine addict, spending between $120 and $160 per week for the drug, although his only income came from recycling and $221 a month in general relief. It is unlikely that the certainty factor of the witnesses' identification had any measurable effect on the jury's assessment of defendant's credibility.
On the other hand, in addition to the eyewitnesses' identifications there was compelling evidence that defendant was the shooter. Defendant was a familiar sight to Detective Garcia, who had seen him many times in the neighborhood since 2001. Just 10 days before the shooting, defendant told Detective Garcia that he was the only person who ever rode his bicycle. Detective Garcia was sufficiently familiar with defendant's appearance to suspect him when he read the friends' descriptions, and to recognize defendant's body type and goatee on the somewhat blurry surveillance video as defendant used Felix's payment card at 7-Eleven.
When defendant was detained three days after the shooting, in the basket of defendant's bicycle were a black helmet, a stereo, and the black plastic bag containing Felix's belongings.
In light of such evidence we discern no reasonable probability of a different result if the certainty factor had been excised. We are confident that the verdict was surely unattributable to that single phrase in the instruction. (See People v. Pearson (2013) 56 Cal.4th 393, 463 [explaining Chapman test].)
II. Assistance of counsel
Defendant contends that defense counsel rendered ineffective assistance by failing to undertake reasonable pretrial legal research regarding the certainty factor, in failing to object to the certainty factor phrase in CALCRIM No. 315, and in failing to present an eyewitness identification expert.
The Sixth Amendment right to assistance of counsel includes the right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-694 (Strickland); see also Cal. Const., art. I, § 15.) "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.] Defendant's burden is difficult to carry on direct appeal, as we have observed: '"Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission."' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Moreover, defendant must show both counsel error and prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) "'"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." [Citation.]' [Citation.]" (Ibid.; see also Strickland, supra, 466 U.S. at pp. 688, 694.) Appellants must affirmatively prove prejudice by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
With regard to the absence of an objection to the certainty factor of CALCRIM No. 315, defendant asserts that his trial counsel failed to research the problems with the factor. Defendant cites nothing in the record showing the trial counsel failed to research this issue. Moreover, if defense counsel had objected, the objection most likely would have been overruled, as the trial court would have been bound to follow Sánchez and the other California Supreme Court precedents cited in that case, as we have discussed above. (See Sánchez, supra, 63 Cal.4th at pp. 461-462; Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Counsel does not err by failing to make futile objections. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
Trial counsel had obtained the appointment of Mitchell Eisen, Ph.D., an eyewitness identification expert. At the close of the prosecution's case, defendant's trial counsel explained to the court why he decided not to call Dr. Eisen, with whom counsel had consulted the day before the commencement of the defense case, and "laid out the case." Counsel explained: "I'm not sure how much it would help to call him based on the state of the eyewitness I.D. evidence at this point, now that the case has been at its end. And so I believe that I'm fine going without his testimony."
Defendant asserts that Dr. Eisen's explanation of the unreliability of eyewitness identification and the scientific evidence against the perception that witness confidence corresponds to accuracy would provide strong evidence to support defendant's mistaken identity defense. He contends that counsel's explanation was insufficient. He also contends that under the facts of this case, where three of the eyewitnesses could not identify defendant from viewing the photo array, and not expressing certainty until seeing him in jail clothing at counsel table during the preliminary hearing, "there is no reasonable theory of trial strategy that would excuse counsel's failure to call an eyewitness expert at trial." As direct authority for this contention, defendant cites Hinton v. Alabama (2014) 571 U.S. 263, 275-276 (Hinton), and Liao v. Junious (9th Cir. 2016) 817 F.3d 678, 694 (Liao).
In Hinton, the attorney error was not failing to call an expert or having called an unqualified expert; it was "the unreasonable failure to understand the resources that state law made available to him -- that caused counsel to employ an expert that he himself deemed inadequate." (Hinton, supra, 571 U.S. at pp. 274-275.) The court concluded that "if there is a reasonable probability that Hinton's attorney would have hired an expert who would have instilled in the jury a reasonable doubt as to Hinton's guilt had the attorney known that the statutory funding limit [for experts] had been lifted, then Hinton was prejudiced by his lawyer's deficient performance and is entitled to a new trial." (Id. at p. 276.) The circuit court in Liao found counsel deficient for not obtaining a sleep study for the defendant, and in conclusion quoted and paraphrased Hinton as follows: "[A] defendant could well be prejudiced by his attorney's failure to secure an expert witness on a scientific issue if 'there is a reasonable probability that . . . [the] expert . . . would have instilled in the jury a reasonable doubt as to [his client's] guilt . . . .' [Citation.]" (Liao, supra, 817 F.3d at p. 694.)
Nothing in either cited case supports defendant's suggestion that the failure to call Dr. Eisen was unreasonable under any theory of trial strategy. Indeed, as the Supreme Court made clear in Hinton, "The selection of an expert witness is a paradigmatic example of the type of 'strategic choic[e]' that, when made 'after thorough investigation of [the] law and facts,' is 'virtually unchallengeable.' Strickland, 466 U.S., at 690." (Hinton, supra, 571 U.S. at p. 275.) In Hinton, appeal had been taken from a postconviction petition for new trial, which had been denied after an evidentiary hearing. (Hinton, at pp. 270-271.) In Liao, the appeal had been taken from the denial of habeas corpus, also after the trial court had heard evidence. (Liao, supra, 817 F.3d at p. 681.) Here, defendant points to no evidence in the record of any failure on defense counsel's part to thoroughly investigate the law and facts, as he claims. Counsel consulted with Dr. Eisen, laid out the facts, and as a result of his consultation made a strategic choice. Defendant deems counsel's explanation of his choice insufficient, but cites no facts indicating that the consultation itself was insufficient or that "'"affirmatively discloses that counsel had no rational tactical purpose,"'" for making his strategic choice. We thus cannot presume counsel error. (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.)
Moreover, defendant has not demonstrated that but for the alleged errors of counsel there was a reasonable probability, "sufficient to undermine confidence in the outcome," that he would have obtained a different result. (Strickland, supra, 466 U.S. at p. 694.) Even if the jury fully accepted Dr. Eisen's testimony that eyewitness identifications had been proven scientifically to be unreliable, that they had led to the conviction of many innocent persons, and that certainty did not correspond to accuracy, defendant's credibility would remain very weak.
There was no corroboration of the existence of James Dunn, although defendant claimed he lived just a couple houses from defendant's grandmother; there was no testimony or statement from defendant's uncle or the caregivers who defendant claimed were with his grandmother when he visited; defendant had a strong motive to steal, as he was a cocaine addict with insufficient lawfully obtained funds to pay for his addiction; and defendant's credibility was impeached with numerous felony convictions. In contrast, the testimony of the law enforcement officers bolstered the eyewitness identifications and provided compelling independent evidence of defendant's identity as the shooter.
See our discussion of prejudice in section IB above.
In sum, we discern no reasonable probability sufficient to undermine confidence in the outcome, that the result would have been different if Dr. Eisen had testified. We conclude that defendant's ineffective assistance claim fails under both prongs of Strickland.
III. Section 654
The trial court sentenced defendant on count 6, possession of a firearm by a felon, to a term of eight months to run consecutively to the base term, and on count 7, unlawful possession of ammunition, to a concurrent term of two years. Defendant contends that section 654 required the trial court to stay the two-year term imposed for count 7, rather than running it concurrently. Respondent agrees.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Where, as here, all the unlawfully possessed ammunition is loaded into the unlawfully possessed firearm, section 654 prohibits multiple punishment for the two crimes. (People v. Lopez (2004) 119 Cal.App.4th 132, 137-139.) "[R]ather than dismissing charges or imposing concurrent sentences, when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence . . . . [Citations.]" (People v. Duff (2010) 50 Cal.4th 787, 796.) Thus the sentence must be modified accordingly.
Defendant asks that we remand and direct the trial court to modify the sentence. Because we otherwise affirm, we will exercise our authority under section 1260 to modify the judgment without remand.
DISPOSITION
The two-year term imposed in count 7 is stayed. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this change, and to forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
HOFFSTADT